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Most of the claims that use “securitization” as a foundation are FALSE!!

That means they have no right to administer, collect or enforce any debt, note, mortgage or deed of trust.

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AND pursue damages against those who make false claims.

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MISSION STATEMENT: We want to convince homeowners to fight illegal foreclosures and win — not merely delay a negative outcome. And we want them to go further — to pursue those who make false claims for monetary damages. In fact, I want homeowners to clear their title — expunging or removing or canceling the mortgage lien. 

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MLK: Can democracy work without knowledge and competency?

public officials are the only professionals in our society who (a) don’t need to be certified for knowledge, competence and character and (b) don’t need to maintain their education about legislation and law enforcement.

I get lots of complaints (I call it whining) about the state of our laws and the lack of enforcement. It constantly happens, especially in the lending marketplace, with fake loans, fake foreclosures, and fake collections. Everyone is doing it because it is just too good to pass up. Our social media society has decided to address this issue, which is as old as societies in human history. They approach it by complaining about the failures (real and perceived) of others rather than doing something themselves.

I conceded that there is a good basis for feeling disempowered. But I insist that we should not give in to that feeling. And as the various major course corrections in our laws and justice have shown, things change only by mass actions by the public. Lyndon Johnson wanted to be the president known for passing laws guaranteeing civil rights, but he knew he couldn’t do it alone. So he told Martin Luther King, “Make me do it!”

The question is not what the law says. The question should be, “who will enforce the law?” Since the federal agencies are not doing it, we are left with two options:

1. Mount a public campaign to force agencies to pay attention to blatant violations of law.
2. Pursue aggressive litigation against the fraudsters.
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Either way it costs a lot of money. Agencies are made up of people who can be persuaded just as judges can be persuaded (although everyone or nearly everyone says I am wrong). My experience is that if you stick with it and play by the rules, you can turn the judge’s head.
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The same might be true for agency personnel. But you have a problem with the agencies. Almost everyone who goes into public agencies is there as a stepping stone to the private sector. That means they are auditioning for a job with the companies entrusted with the power to regulate. The revolving door is not illegal, so that law needs to be changed. Complaining about it won’t change anything — unless everyone does it.
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But the other problem is that public officials are the only professionals in our society who (a) don’t need to be certified for competence and character and (b) don’t need to maintain their education about legislation and law enforcement. Everyone else, from hairdressers to surgeons, must at least meet minimum standards of competence. THAT needs to be changed to include public officials regardless of whether they are appointed or elected. 
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Martin Luther King could have passed any test that grilled him on how government works and how it is intended to work under the absolute requirements of the U.S. Consitution. I would wager that the person(s) who shot him could not have passed that test.
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King knew and said that depriving anyone of a proper education in civics would leave them at a severe disadvantage in navigating the legal system and even life in general. But under the auspices of those who believe that an educated voter is their worst enemy, education has been stripped away, decade by decade, eliminating the key components that teach knowledge, competent thinking, and moral action.
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Education is not an expense, as anyone knows who has had the benefit. It is an investment in the future of our society. The only cost associated with education is the failure to provide it. It leads to people who don’t know enough to do what is necessary. Then we rely on those people to do their jobs and complain about them when they don’t.
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Financial education should start young such that even the youngest people would understand that the world of business consists of many people who have set out to trick them. They need to learn that when it is too good to be true, then it isn’t true.
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Regulators and law enforcement would know the same thing. I can spot a scam merely by skimming newspapers. Anyone offering a 16% return “guaranteed” in a market where the highest average return is 5% is operating a Ponzi scheme. Yes, it IS that simple. But every successful con man will tell you the same thing: they only set the stage. The con is completed by the mark. It is not stopped by law enforcement until the damage is done.
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How to Beat the Banks at their Own Game: Lawyers need to step up their game

Many American lawyers are advising their clients that there is no credible defense. In doing so, they are missing the obvious: that there might not be a real claim that can be corroborated.
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That arises either because there is no debt or because the debt is not owed to the claiamnt. It doesn’t matter if someone “missed” a scheduled payment if the payment is not due to the party claiming the default. In such circumstances the “default” does not legally exist and the claim to seek remedies also does not exist.
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This is easily demonstrated by anyone who is not afraid to ask the core questions about the existence, ownership and authority over the alleged debt.
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The key to success for most homeowners is undermining the ability of the oppoistion to allege or prove their case. In foreclosure cases, this accomplished by a simple revelation produced during discovery: that the opposing attorney is unable or unwilling to produce corroboration of the existence of the loan account. 
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Lawyers are leading millions of homeowners astray. They do this because they have decided that the homeowner does owe the money to the party demanding it. Lawyers have thus become judge and jury over a claim about which they know absolutely nothing.
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But the case against their prospective client relies entirely on the proposition that because the homeowner issued a note, ANYBODY can collect or enforce it — regardless of whether the underlying obligaiton exists and regardless of whether the opposing lawyer can prove that. This proposition invites moral hazard and has never been included in any common law doctrine or stautory law.
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Quite the oppoiste.
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Here is the law: The ONLY legal way for a lawyer to succeed at enforcing claims for collection or enforcement of the lien is if that lawyer is repsenting a client who owns an unapid loan account due from the homeowner.
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In residential transctions, this is virtually NEVER true. But lawyers who are misinformed and suffering from the same bias as judges, fail to advise their clients regarding the procedure by which they can contest a claim. 
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In the best case scenario, the defense would start immediately upon applying for a “loan” or closing the “loan.” This is generally not possible because the homeowner has no idea they are being induced to become an issuer in a securities scheme instead of what appears to be a borrower in a loan agreement.
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So my best advice is that as soon as the homeowner learns about the possibility that the transaction was not what it appeared to be, they should ask. This usually starts when they get their first notice of the existence of a “servicer” or the receipt of a “statement” for the lender. The question to be asked is “was a loan account created when we closed the transaction?”
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By sending repeated qualified written requests and debt validation letters pressing them to answer the question in a SIGNED letter (by a human being with a telephone number contact, as required by law), you are counteracting the tracks in the sand that they are creating by sending you statements as if the loan account existed.
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I want to correct what I think is a misimpression or misapprehension: The 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. That is unalterably true, even if it is a complete fabrication. But after the initial pleading and motion stage of litigation, the truth of the claim is no longer presumed — unless the homeowner unwittingly admits it.
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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 always rely upon available legal presumptions arising from the apparent facial validity of the exhibits and from relaxed pleading requirements 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 incontrovertible 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 asserted and 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. In other words, the homeowner wins without proving anything.
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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 an officer of the named claimant/creditor.
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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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No employee or officer of US Bank, Bank of New York Mellon or Deutsch is authorized to give such a statement. In fact, they are prohibited from doing so since that would subject the person and the corporation to criminal charges of perjury. It would be perjury if such an officer executed such a document w since it is NEVER the case that those banks (allegedly acting “as trustee) maintains or owns any unpaid loan account.
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It is the counterintuitive nature of that conclusion that prevents lawyers from properly advising their clients and to advise making payments to an organization that has been designated as the party entitled to receive the payment — when the designated recipient does not make such a claim for itself.
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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 a legal nullity, which means that it is treated as though it never happened for legal purposes. It is not necessarily true that an endorsement of a note creates such a transfer. So if the assignment of mortgage recites “for value received” and no such transaction occurred (i.e., no value was actually received), then there was no assignment, and all claims that rely on that assignment are void.
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The homeowner wants to show 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.
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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 raise 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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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.
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However, after you get a favorable ruling when they move against the homeowner to foreclose, you can press the claim that the parties have no right to the lien and perhaps even that the lien should be removed from the chain of title through a quiet title action.
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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, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting 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. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for 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 CONSULT (not necessary if you order PDR)
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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.

Duties of Lawyers Extend Beyond Taking “Evidence” at Face Value

Here is the problem for certain lawyers:

If they question the instructions, data, reports and testimony offered to them — like really question them — they won’t see a single foreclosure case referred to them. Law firms have been built using foreclosure prosecution as their sole business model. Some like Tiffany and Bosco made so much money doing that, that the principals each ended up with private jets, yachts, and chalets. Stern in  Florida sold his “business” for tens of millions of dollars. So it goes without saying that such law firms and the lawyers who work for those law firms have an incentive NOT to ask questions.

But if they continue with their current custom and practice they are likely to end up getting the treatment from a very angry judge, especially in federal court. That is because those lawyers have tacitly agreed to receive and act on uncorroborated information without performing ANY due diligence as to the veracity or authenticity of the claim, the supporting documents or the proferred testimony of a witness who knows nothing other than the contents of a script that he or she memorized. Besides being held in contempt, sanctions, and fines, they could lose their license.

Many law firms in the country are acutely aware of this and as such have refused to enter the foreclosure marketplace because they know that the instructions have not been issued by anyone who has legally recognized authority.

They know that not being able to speak with an officer of the claimant for whom they are being asked to represent is not within the bounds of the ethics and disciplinary rules and is likely to land them in hot water — like the lawyer who got stuck with a $100,000 fine in South Florida when he admitted to filing a foreclosure suit for U.S. bank but had never spoken with anyone from U.S. Bank nor had never received any document from U.S. Bank, much less the ledger that corroborated the existence of an unpaid loan account. The Circuit Court judge (state court) became infuriated when the admission finally came out.

In Oregon, appellate attorneys admitted in oral argument that they and no idea about the identity of the creditor for the alleged debtor.

So to put a finer point on it, consider https://e-discoveryteam.com/2018/10/14/judge-pauley-reminds-lawyers-of-their-duty-to-verify-client-representations/

If it is key electronic evidence, then give it a full dental exam, including especially the metadata. Plaintiff’s counsel in this case failed to do that. He barely glanced at the horse. As a result the case was lost and so was he. He was forced to withdraw and almost personally sanctioned for violation of Rule 3.3 Candor Toward The Tribunal, ABA Model Rules of Professional ConductAlso see: Greene, Attorney Avoids Sanctions Over Client’s ‘Staged Photos’ (Bloomberg Law 7/31/18) (“Attorney won’t be sanctioned for failing to discover that his client had lied about when digital photos were taken in order to support her case against New York City police officers.”).

This holding re Rule 37 should be limited to the unusual facts of Lawrence. The production of altered and faked evidence to another party, instead of the originals, certainly can be a Rule 37 violation. You do not have to prove that the attorney was in on it before Rule 37 applies.

We should all be aware of the Big Bad Wolf client who comes in with computer evidence too good to be true. Look carefully, Grandma may be a wolf and you may be tangled in a web of fraud.

The tangled web to deceive

The cancer that keeps eating away at the foundation of our economy is the current culture on Wall Street. It involves fake accounts, fake documents, and nonexistent transactions.

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It involves lawyers who are protected by litigation immunity and who promote false claims on behalf of claimants that have not hired them or even know they exist. We have seen such nonsense multiple times in history. It always ends the same —- with a crash. And apparently, the 2008 crash wasn’t enough because they are still doing it.

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With a hit tip to summer chic, here is an edited version of what she recently wrote to me.

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Lone Star reincarnated Countrywide into  Caliber and BlackRock – into PennyMac

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There are at least 10-12 companies preying on each of us at any given time.
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Elle correctly said – investment banks are not involved in extortion from homeowners – directly. This is probably why Wells is “leaving housing market”
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They act via numerous intermediaries- hedge funds and fintech who in turn act via fake servicers and fake lenders.
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That is what Wall Street does – they establish the Scheme to sell securities.
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Then they destroy all documents about their transactions – after it was imaged and stored in Foley’s database ; and declare it “defaulted”
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Each prior transaction is stored in this database as defaulted.
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As many times as the property was sold, refinanced or modified , each time it creates a new string of securities- and this  new transaction is named as “defaulted” right away and assigned to so-called “debt buyers” who of course did not buy anything and do not own anyone’s debt.
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The largest “debt buyer” is BlackRock, who merely is given access to Black Knight’s database and permission to steal as much as they can from homeowners under cover up of “servicers” who merely rent their names for correspondence and “billing statements “
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Hedge funds also don’t have access to money flow since it’s all done via BL, Fiserv and Exela.
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Each hedge fund has its own cohort of smaller fintech companies who receive passwords and instructions from main Fintech such as Bkack Knight and Fiserv.
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The players get paid by Wall Street banks after money is transferred offshore.
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All details should be investigated by DOJ who of course knows about it.

Script for Tongue-tied pro se litigants and lawyers

A simple truth always applies: Only an experienced trial lawyer can walk into a courtroom and feel comfortable. Everyone else is angry, confused, or terrified, even if they are a lawyer. The consequence is that they either say nothing at all or say nothing that is relevant or persuasive, or both.

When pro se litigants and inexperienced lawyers go to court, they must repress the impulse to challenge the judge as unfair and biased, even if it is true. Instead, they must acknowledge the obvious and then challenge the court with something undeniable.

Pro se litigants across the country have been successful because they understood that. Inexperienced trial lawyers became experienced trial lawyers in part because of that.

The Judge is tasked with moving a congested trial calendar and doesn’t care one whit about who wins in your case. He or she only cares about clearing the docket. Crying about bias and corruption after you lose may feel good — but not as good as winning the case.

Virtually every judge has made several assumptions about foreclosure cases. And they will often make statements or rulings based on those assumptions.

The trick, as every successful trial lawyer knows, is to nip it in the bud. If you are successful you are likely to win. You need to stop the judge from flowing along and with their own internal assumptions and applying a one size fits all to the ruling.

Here is a script that pro se litigant in that situation can use:

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“Excuse me, Judge I know you are busy, and you have a congested calendar. And I know I could be better versed in legal procedure or substantive law.

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“But as a pro se litigant, I would like to ask you to grant me some leeway here so that I can present a defense. I know the defense narrative does not appear realistic to you nor provable. In fact, you might not like the result even if I am correct.

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“But I am challenging the existence of any claim possessed by this claimant. Nothing more and nothing less. The issue is not whether I missed a payment. It is whether I missed a payment to them.

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Surely you have no interest in awarding property or money to a party who is not entitled to receive it, right?”

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And here is what you did with or without knowing it:
  1. You stopped the flow against you
  2. You acknowledged the obvious
  3. You invoked common law doctrine that requires a judge to be more lenient with pro se litigants
  4. You simplified your defense narrative
  5. You issued a challenge to the court that the judge could not refute

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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

Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting 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. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for 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 CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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.

CFPB Takes Action to Halt Debt Collection Mill From Bombarding Consumers with Junk Lawsuits

FOR IMMEDIATE RELEASE:
January 11, 2023

CONTACT:
Office of Public Affairs
press@cfpb.gov

CFPB Takes Action to Halt Debt Collection Mill From Bombarding Consumers with Junk Lawsuits

Forster & Garbus illegally sued borrowers on behalf of Citibank and Discover, among others

WASHINGTON, D.C. — The Consumer Financial Protection Bureau (CFPB) has reached a settlement in its lawsuit against law firm Forster & Garbus, LLP for illegal debt-collection practices. If approved by the court, the proposed settlement would prohibit Forster & Garbus from filing any new lawsuit against a consumer unless it has specific documents supporting the debt and certifies that an attorney reviewed those documents. The order would also require the company to dismiss any pending lawsuit where it cannot satisfy these requirements. Forster & Garbus would also be required to pay a penalty of $100,000, which would be deposited into the CFPB’s victims relief fund.

“Forster & Garbus bombarded its customers with sketchy lawsuits on behalf of big lenders like Discover and Citibank,” said CFPB Director Rohit Chopra. “The CFPB will be scrutinizing large financial companies that enlist debt collection outfits operating lawsuit mills.”

Forster & Garbus, LLP is a debt-collection law firm based in Commack, New York. Forster & Garbus had major clients including Discover and Citibank. Between 2014 and 2016, at any given time, Forster & Garbus employed roughly 10 or 11 attorneys, in addition to its two named partners. From January 1, 2014 to the filing of the complaint, Forster & Garbus’s clients placed more than 136,700 accounts with the firm for collection.

In 2019, the CFPB sued Forster & Garbus alleging that, from 2014 through 2016, fewer than a dozen attorneys at Forster & Garbus filed more than 99,000 debt-collection lawsuits, while having documents to support only a fraction of those debts. The CFPB further alleges that Forster & Garbus falsely represented to consumers that attorneys were meaningfully involved in preparing and filing the lawsuits, violating the Fair Debt Collection Practices Act’s (FDCPA) prohibition against collecting debts by using false, deceptive, or misleading representations and the Consumer Financial Protection Act’s (CFPA) prohibition against deceptive acts and practices.

Enforcement Action

Under the CFPA, the CFPB has the authority to take action against institutions violating consumer financial laws, including the FDCPA, which addresses unlawful debt collection practices. The CFPA prohibits engaging in unfair, deceptive, or abusive acts or practices.

If entered by the court, the order would require Forster & Garbus to:

  • Retain specific documents supporting the debt before filing a debt-collection lawsuit: Forster & Garbus would be required to possess documents with specific information about the debt, including the name of the original creditor, evidence that the consumer authorized the debt, the chain of title supporting any sale of the debt, and a break-down of how the debt amount was calculated.
  • Review documents supporting the debt before filing a debt-collection lawsuit: Foster & Garbus would be required to certify that an attorney whose name will appear on the complaint has reviewed the documentation supporting the debt and ensured that the complaint is consistent with that documentation.
  • Dismiss certain debt-collection lawsuits: Forster & Garbus would be required to dismiss any pending lawsuit against a consumer if it does not certify its compliance with the specified documentation and meaningful attorney review requirements within 120 days of the court entering the order.
  • Pay $100,000 in penalties: The order would require Forster & Garbus to pay a $100,000 penalty to the CFPB, which would be deposited into the CFPB’s victims relief fund.

Read today’s proposed order.

Consumers can submit complaints about financial products or services by visiting the CFPB’s website or by calling (855) 411-CFPB (2372).

Employees of companies who they believe their company has violated federal consumer financial laws are encouraged to send information about what they know to whistleblower@cfpb.gov.

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The Consumer Financial Protection Bureau is a 21st century agency that implements and enforces Federal consumer financial law and ensures that markets for consumer financial products are fair, transparent, and competitive. For more information, visit consumerfinance.gov.

I’m fighting against homeowners who think they know

Here is an example from one of my more savvy readers who still makes the key error: This person refers to the “Depositor” in the chain of “Securitization” references contained in various documents. None of those entries are legally significant in any way unless they (refer to real-world transactions ) and (b) are contested by homeowners.

Companies named as depositors are nothing of the sort. They are small undercapitalized companies that have virtually no income or employees. Their sole purpose is to create an implication that the sale of an unpaid loan account (or a group of unpaid loan accounts) has been sold. This is a lie — not merely a misrepresentation deigned to mislead.

So here is my response to one inquiry I received.

Correction: they were NAMED as the depositor.

With only $300k in revenue, they could not have been processing the volume of “loans” referenced.

To be the depositor, one would be the owner of the named asset. The named asset is a loan receivable due from a homeowner.

You get to be an owner by paying for it or getting it as a gift.

They never deposited ownership of the loan receivable account.

They never took ownership of any loan receivership account, which is easily provable by asking for their general ledger to see if they ever listed it as an asset arising out of entries against other asset accounts that enabled the “depositor” to pay for the asset. It is all smoke and mirrors.

To be blunt: People who lack education, knowledge, and training in investment banking and law have no right to express an opinion. If they choose to do so, they are hurting not only themselves but thousands of others.

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

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, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting 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. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for 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 CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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 to Speak to the Judge

LISTEN TO INTERVIEW WITH NEIL GARFIELD AT

https://www.buzzsprout.com/2098874/12025188-foreclosure-defense-with-neil-garfield-esq?t=0

I obviously cannot compact 47 years of courtroom experience into a single article or, for that matter, any less time than I spent in courtrooms, conducting thousands of hearings and trials. But I can distill what I think made me successful (most of the time). So I have decided to start suggesting things that pro se homeowners and/or their lawyers should start saying in court — using their own styles and their own feel (“the vibes”) of the judge and the courtroom.

It is axiomatic that any homeowner who comes to a courtroom to defend their home from a claim pleading for foreclosure — either in judicial or nonjudicial settings — will encounter resistance at the very least and outright hostility in many cases. This is not just in foreclosure cases. The judge is human and susceptible to all kinds of bias and prejudice, just like anyone else.

The first rule for anyone who is entering the courtroom is to stop attending that anyone is interested in anything you have to say. You have to make them interested. These are all people who listen and argue cases all day long. The second rule is that you have to understand and accept that you have a very limited time to interest the listener (the judge) in what you are saying.

I don’t know who first said it but they were right. Tell him/her what you are going to say, say it, and then total tell him/her what you told him/her. You should practice in front of a mirror until you have convinced yourself that you have delivered the deathblow to your opposition. You need to be confident, assertive and extremely clear.

You should first clarify your specific goal or desired outcome. The more specific and clearly defined the outcome, the more powerful the argument will be.

Here are some successful examples of real-life situations where I was the defense lawyer and corrected the judge, who eventually ruled in my favor rather than the way he wanted to.

  1. A criminal case in which my client was accused of assault which included the lesser included offense of reckless display of a firearm. Jury trial. Assault means by definition, not the act but the impact of the act — i.e., a person in fear for their life or limb. In my closing argument, I successfully convinced the jury that my client was not guilty of assault, and I suggested a conviction for the reckless display of a firearm. The  Judge did not like that. The Judge wanted to sentence my client as though he was found guilty of assault. It was obvious from how the judge started to characterize the case when he was about to pronounce sentencing. He was about to issue a maximum sentence allowed for the misdemeanor — 12 months. I interrupted the judge and said, “Judge, excuse me, but I believe you are displaying bias. From your characterization of the offense, it is obvious that you want to sentence my client for the offense you believe he should have been convicted. But he wasn’t. He was convicted of a misdemeanor, not a felony, and has no prior criminal history. I suggest that in lieu of sentencing today, you continue the case until the presentence investigation can evaluate the case for sentencing.” Here is what I was doing: First, I stopped the judge forcefully. I wasn’t quiet. Second, I raised the issue of bias, and he knew I was right. Third I gave him an off-ramp.  In this case, the Judge should have rendered a sentence of time served but instead imposed a sentence of 4 months which, with good behavior, meant about 3 months. that was more than my client should have received, but that sentence made the appeal futile since he would be out by the time the appellate decision was rendered. I didn’t get everything I wanted. But I got most of it.
  2. Foreclosure cases: I have had several occasions on which I told a very irritated judge that I thought he or she was biased. “Judge, I recognize the irritation in your voice and demeanor. Are you closed to the possibility that the homeowner doesn’t owe the alleged debt to the claimant in this case, or have I done something to offend you?” In a bar, I would be punched or even trampled. But in a court of law, the Judge is required to maintain a good judicial demeanor. Every Judge that loses their cool on the bench is susceptible to removal from the court. There has never been an occasion in which the judge did not allow the time required to present the defense; frequently the same hostile judge sustained my objections, granted my motions to strike, and ruled in favor of the homeowner.

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

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, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting 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. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for 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 CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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.

 

Don’t get lost in the weeds!

Anyone who watches the Madoff Ponzi documentaries knows that people deluded themselves out of greed. The basis of the Madoff scheme was a huge pile of documentation that was all fake. The “business” was taking money from investors and investing it. Madoff never made a single transction.

There was no such business. This is what happened and what is still happening with “loans” that are originated by investment banks though multiple layers of intermediaries. There is no loan business. Tehre is only the business of selling securities. And in doing that, there is no balance due.

Millions of homeowners and thousands of lawyers have become lost in the weeds as they overlook the most obvious question: did this transction ever produce an unpaid obligation from the homeowner? Was that obligation ever purchased and sold in a transction between any assignor and assignee or endorser and endorsee?

The answer is simply NO! So why do homeowners and their lawyers inisist on paying it?

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I recommend you all see the Madoff documentary on Netflix. The parallels with the mortgage crisis are unavoidable. Let me remind you how easy it is to slip into the traps set up by Wall Street investment banks and their lawyers.

*

While an unauthorized endorsement is invalid, an authorized endorsement IS valid. And if the check or note payee consents to the endorsement, it is presumed valid. The issue is not whether the endorsement was valid. The real issue is whether the named payee was a valid payee.

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This is the part that is extremely difficult for people to understand because it rubs against established thought patterns that the consensus takes as true. Harry Markopolis had the same problem when he repeatedly warned about the Madoff business being entirely a Ponzi scheme. Nobody would listen to him. It was “impossible” for  Madoff — an icon of Wall Street — to be a common criminal.
*
So let’s take an example that is representative of most homeowner transactions. John and Jane Smith are the homeowners, and they are responding to advertisements and calls begging them to refinance.
*
The push to refinance is because each new refinance represents a new round of securities to be sold. John and Jane think that somehow the “lender” is making money through the payment of interest in addition to payments of principal in a loan.
*
Over the phone or on the internet, they are steered to a company that is described as a lender, has a license for lending, and is acting as a broker or salesman. The job of the company is nothing more than securing the signature of the homeowner whose issuance of the note and mortgage is the start of the issuance and sale of s securities to investors. This company will not lend any money, touch any money or receive any money other than a fee for securing the signature of John and Jane.
*
Let’s call the company Joe’s Lending LLC. John and Jane submitted a completed application and some very private documents to a site that is designated as Joe’s Lending LLC. The site is managed by a financial technology company that forwards the application and documents to an undisclosed underwriter who makes sure that the statements by John and Jane fit the legally required attributes of a borrower.
*
Joe’s Lending LLC is operating under an assignment and assumption agreement in which it has delegated and granted all ownership and control of all of its activities to a third party. It is doing nothing. It is not allowed to do anything. It can’t receive or disburse money to anyone in connection with the transaction with John and Jane.
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The undisclosed third-party “aggregator”/underwriter is merely a sham conduit representing the interests of an undisclosed major investment bank. Frequently (in the years before 2008 crash), this party showed up as Countrywide Home Loans. In reality, it was not doing anything either. Financial technology companies were doing the work of underwriting.
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Take note that underwriting did NOT mean compliance with Lending Laws. It meant only that the facial validity of the transaction was intact for advancing it as a loan to the GSEs (Fannie, Freddie etc).
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Jane and John are given a date for the “closing” at the office of a “closing agent.” the closing agent thinks he/she is processing a loan closing. The transaction will enable Jane and John to receive $50,000 in cash. The amount of the transaction, though, is stated to be $450,000. The additional $400,000 is labeled as “payoff” of the “old loan.”
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The “old loan” is the same transaction with the same investment bank as the controlling entity — although the investment bank never asserts ownership of the debt, note, or mortgage. Contractually it has arranged to control all payments and all receipts.
*
The “old loan” named Joan’s Lending LLC as the payee on the note despite the fact that no debt was due to Joan’s Lending. Joan’s lending was also bound by an assignment and assumption agreement giving the same investment bank all control over the transaction and ownership claims to the undisclosed intermediary aggregator/underwriter.
*
John and Jane attend the closing with the closing agent, who knows nothing about the transaction and does whatever is included in instructions from the presumed “lender.” In reality, those instructions come not from any “lender” but rather from a financial technology company working for the investment bank.
*
In our example here, we will assume that no money is paid to Joan’s Lending because no money was due to them, and they are probably out of business. The closing agent gets instructions affirming that Joan’s Lending will be paid as soon as the transaction is confirmed and that he should disburse the $50,000 wire transfer to John and Jane.
*
John and Jane take the $50,000 and assume that they just signed up for a loan, including paying off the old loan. The new “loan” names Joe’s Lending as Payee, but Joe’s Lending has no claim to receive payments. So Joe’s Lending was an improper party to be named as payee on the promissory note and mortgage unless it was acting as an agent for a party to whom the money was owed.
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The ONLY party to whom money can be owed is a party who has paid for the transaction and therefore has something to lose if the homeowners do not meet the conditions. There is no such party, and there is no company or person whose general ledger will show that it paid for the alleged debt owed by John and Jane. And there was no such party in the “old loan.”
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All revenue from the sale of securities is used to pay off the actors and participants in the scheme. Nobody is left with a balance due. But the paper signed by John and Jane preserves the claim for money even though no money is due.
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Nonetheless, as the named Payee on the note, Joe’s Lending could theoretically authorize or consent to the endorsement simply because it is the named payee. Even though the consent is fictitious and part of a fraudulent scheme, they do so under “color of title.”
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The general practice I have established through interviews with closing agents was to allow the mortgage broker for the mortgage broker to come into the office of the closing agent and execute and endorse the note before the ink was dry from the signature of John and Jane, who had just left the office.
*
Who gave that person authority? The answer is anyone who was appointed to do so by the investment bank, who always acts through layers of intermediaries. And who gave the investment bank the authority to do anything with the homeowner? The answer is nobody.
==============
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 DONATENeil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting 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. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for 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 CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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.

EVERYONE LIES IN THE MARKETPLACE — THE GOVERNMENT IS NOT DOING ITS JOB

The basis for most big business plans is to give the consumer the worst possible product or service while convincing the same consumer that the cost is inevitable and the product or service is excellent. This produces something that Alejandro Reyes of Deutsch Bank called a “counter-intuitive” system. This term has been widely adopted, even if not accurate. It basically another word for lying. Strictly speaking, an event or person may appear as one thing when it is, in fact, another. Con men all use this because they know something about human nature — people like to think they know even when they don’t. So the conman sets the stage and lets everyone else con themselves. Ask any successful con artist, and they will all tell you this is true. I have personally represented several of them, including some of the best. Some of them are currently running businesses in the insurance, legal, drug, and law enforcement businesses.
Let me give you a few examples:
  1. INSURANCE IS NOT EXACTLY WHAT THEY ARE SELLING: When I was a defense attorney for traveler’s insurance, I learned that insurance companies have a vested interest in keeping verdicts high. Even I found this incomprehensible. But once explained, it was clear: a higher verdict meant higher demand for insurance and higher prices for premiums. This produced much higher gross revenues and profits since the real actuarial risk was much lower than what was being sold to people and businesses. And that increases the value of the primary product of nearly every public company and many private ones — the value of its common shares that trade or could be traded on the open market.
    1. The decision to let a case go to trial, knowing that it will result in a negative verdict of notable size, means that the press will carry it (frequently front page) and scare the hell out of anyone who is in that line of activity or work.
    2. The solution, of course, would be a return to the actual realities that were discovered and utilized by two Scotsmen for pension benefits in the early 1800s — that nobody can predict when a specific event will occur.
    3. Still, anyone can accurately predict how many such events will occur in any given time period.
    4. The risk is known but concealed and then sold as something that favors the seller while keeping the buyer in the dark.
    5. In a free market, this would be corrected. But we are way past that because the U.S. government has been so unwilling or incapable of enforcing the basic rules of fairness and balance in the marketplace —  despite a panoply of laws, rules, regulations, and case decisions that would make it easy to do if the government only wanted to do the right thing.
    6. The current practice of paying off innovators (who have a better and less expensive product or service) to stay out of the marketplace is another example of the failure of government regulation to address anti-competitive strategies.
    7. And remember that anti-competitive strategies equal anti-consumer practices. In these issues, The European Union seems to be far ahead of the United States, although still not as effective as necessary to level the playing field to allow free market forces to do their work as the invisible hand governing supply and demand.
  2. DRUG WARS ARE HIGHLY PROFITABLE FOR BOTH SIDES AND DAMAGING TO EVERYONE ELSE: Both drug cartels and those who support law enforcement and prisons make a lot of money because of the illegality of the product. If we were to learn the lesson of prohibition, we would do far better by regulating the industry rather than “banning” it without effect. Drug cartels oppose this because such action would drop the price of what are now illegal drugs to nearly zero. There would be no business to conduct. It is equally opposed by law enforcement who want to keep their jobs and vendors in the money. If nobody is arrested, the whole thing collapses. Meanwhile, the public would save hundreds of billions of dollars and thousands of lives if the product was shifted from criminal to regulated. People could still be placed in prison for violating regulations, but the marketplace for illicit drugs would cease to exist. In turn, this fuels violence, making me people flee for their lives in the form of migration and, specifically immigration to the U.S.
  3. PRESCRIPTION DRUG PRICES ARE FAR ABOVE THIER VALUE, PUTTING CONSUMERS AT RISK: Everyone except consumers wants high drug prices for thousands of middlemen and insurance companies to make fortunes on top of the revenue paid to the manufacturer and the pharmacist for dispensing the product.  Some of the real players create faux players so that they can share in the bounty of being a middleman. Mark Cuban, a billionaire disrupter, is changing that and is having a partially beneficial effect. The price of CostPlus drugs is about 1/10th that at a pharmacy. People continue to die and go to the ER where services and healthcare prices are at a premium because they cannot afford the “retail” price of the drug.
    1. This is because of an inversion. In effect, the wholesale price exceeds the retail price in a free market. The wholesale price now accounts for 65%-75% of the cost of every medication. Whole ale is more expensive than retail, as Mark Cuban is demonstrating on a daily basis.
    2. But the response is that for those insured, the co-pay charged to the consumer is around the same price that Cuban’s company will charge. The rest is paid by insurance on some unknown formula to all the middlemen.
    3. You would think that the point of drug manufacturing was to get needed medication to people who require it. But the real business of drug manufacturing is the distribution with increasing layers of revenue, profit, and jobs such that a $0.50 drug will cost $300.
  4. FORECLOSURES ARE NOT ABOUT REDUCING OR PAYING OFF A LOAN ACCOUNT: Lastly, just because I don’t want to make this article too long, is the fact that foreclosures are not seeking resolution for an unpaid debt. The original transaction and the ending foreclosure are both counterintuitive schemes.
    1. Once again, the seller is hiding behind several curtains and a few doors.
    2. Once again, they are selling something that is not accurately described.
    3. In foreclosures, nobody seeks to make a creditor “whole.”
    4. The entire purpose of foreclosures can be summed up like this: foreclosures stimulate and foster the myth that “loans” are being created and sold to provide extra revenue to the magicians who made it look like a loan.
      1. If you look at the general ledger of any of the participants, there will be no evidence of a loan account — the key component of an unpaid loan. This is of special importance at the time someone pretends to invoke the statutory scheme for foreclosure to satisfy an “outstanding” debt — i.e., a loan account — that does not exist.
      2. The government is once again complicit.
      3. By adopting the attitude that what is good for business is good for the country (i.e., the general welfare and consumer demographies), the government is expressly abandoning the general welfare, consumers and homeowners in particular. It is also undermining free markets, competition, and prices for everything that would be lower.
      4. In a free market, this could not happen. The fact that it does happen is a testament to the conclusion that no such free market is operating.

 

FIRST DEFINE YOUR TERMS

Plato said (maybe it was  Aristotle), first, define your terms. Unless you use the terms correctly- and not just the way you want to use them- you will not make sense in any court. As soon as you open your mouth, you will be revealing that you either don’t know or don’t care about the rule of law. And as soon as you do that, you are inviting the judge to give no weight to your argument or evidence. It’s not up to the judge to clarify what you are trying to say.

  • Mortgage= agreement to give access to the property as collateral for a financial obligation.
  • Note= acknowledgment of a financial obligation owed to the payee named in the note and an agreement to pay the financial obligation owed to the payee.
  • Financial Obligation= a legally recognized event causing one person to be liable to another. THIS IS THE “DEBT.”
    • Evidence of the existence of the debt is found in the note and the ledger of the creditor.
    • Evidence of the unpaid balance due is only found in the ledger of the creditor (payee or endorsee). The unpaid balance due to the creditor can only be proffered to the court by the creditor.
    • It cannot be proffered by testimony or documents from an agent (servicer), unless that agent is the person whose regular course of business is making entries on the books and records of the creditor. Everything else is hearsay.
This means that “mortgage” does NOT mean a note or a debt.
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It also means that “Note” does NOT equal or mean the debt. It is separate from the debt. The debt arises not because anyone wrote it down but because something happened, as opposed to some person or document saying it happened.
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“Actually happened” means something legally recognized by existing statute or common law, not something you want to make law. The “Note” does not equal or mean the mortgage lien — the agreement to grant access to the property as collateral.
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This is true even when the mortgage lien (agreement), as written, says it is securing the faithful performance of the note. Nobody is legally required to make payments under the promissory note if there is no balance due, even if the lien is still in the chain of title without a satisfaction and release. No creditor gets to be paid twice st because they illegally refused to return the note and record a satisfaction of the lien.
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It’s not just that the mortgagee cannot bring any action to use the lien to gain access to the property described as collateral. The property owner has a legally recognized right to force (mandatory injunction) the named mortgagee to execute and record a satisfaction and release and to return the note.
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And if a satisfaction and release is filed by mistake, it only means (a) that the named mortgagee cannot use the lien to foreclose and (b) that this can be corrected with an affidavit of scrivener’s error. The existence of the lien does not mean that the debt is still owed.
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And the release of the lien might be evidence of the receipt of payment, but it is not dispositive. If the payment was not actually made or the check bounced, the debt is still owed, and the debtor is still liable for collection.
*
Foreclosures are about money, not paper. Each term has a specific reason, and there are separate terms because each carries different attributes — and incorporates different state and federal laws.
=============
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 DONATENeil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting 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. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for 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 CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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.

FOIA Requests Reveal the Truth About JPMC-WAMU “Purchase”

The bottom line is that JPM Chase did not actual purchase or pay for anything. The net “price” was negative including an IRS refund due to WAMU but transferred to JPMC.JPMC did acquire the book value assets and liabilities of WAMU and subsidiaries, but there was was litttle in the way of book value for assets which would have included loans — if there were any “loans” (debts+notes + mortgage liens) that were owned by WAMU at the time of its collapse..

The representation that loans originated by WAMU became the property of JPMC was always false and JPMC knew it was false. WAMU owned no usch “loans” or any rights to the transctions with homeowners. The fiction that it retained servicing rights was employed to pretend that somehow there still existed a creditor. That role was exintguished in the process of securitization.

Lawyers for Wall Street investment Banks can successfully argue, perhaps, that their style of securitization should be made legal. But they cannot argue successfully that it is currently legal. 

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Hat Tip to Summer Chic, who made the FOIA  request to FDIC. Dozens of letters and notices from lawyers for JPMC were included in the response. They clearly show knowledge and intent of JPMC management about what they ere really doing despite what they were saying in court.

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It is very interesting. Among other things, it clearly demonstrates that JPMC has taken the position that it cannot incur any losses unless it results from JPMC action. Anything that happened before 9/25/08 is the responsibility of the FDIC, which has indemnified JPMC against any losses for damages, costs or expenses.  It even shows that the FDIC allowed the settlement of such claims by JPMC even though the FDIC was responsible for reimbursing JPMC for any and all costs involved.

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Further, it shows that no Power of Attorney ever existed in which the FDIC gave JPMC the authority to act for the FDIC or the WMU estate except as specifically set forth in the Purchase Whole Bank Agreement.
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And it shows that WAMU subsidiaries sold off certificates contemporaneously with alleged loan closings such that there were few, if any, loans acquired by JPMC — although it is possible that JPMC preserved “Servicing rights.”
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But if they were servicing and were not the creditor, they were agents without a principal. And that is the problem that runs throughout the securitization infrastructure created by Wall Street. And it is why the only rational conclusion is that securitization extinguishes the actual debt and replaces it with a faux debt that is only implied by documents. There can be no debt without a creditor to whom it is owed.
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And it shows that what I have been saying for 16 years is the same thing that both JPMC and the FDIC accepted as fact —- JPMC repeats again and again that they acquired only the book value of liabilities and presumably the book value of assets as shown on the books and records of WAMU and subsidiaries.
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I repeat that no schedule of “loans” has ever been prepared or produced that was attached to or offered as a supplement to the 9/25/08 agreement. The “book value” only gets reported under GAAP if there are corresponding entries based upon a memorialization of transactions conducted in the real world.
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And it shows that the repurchase agreements, disputes, and settlements were rampant. This is the central reason why the banks want us to focus on the paper rather than the money trail. Because the ultimate question is to whom doe the homeowner supposedly owe money? It can ONLY be someone who owns their debt.
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The repurchase obligations and settlements underscore the obscurity of the ownership of the debt and, therefore title since a paper transfer of the mortgage lien without a contemporaneous transfer (purchase and sale) of the debt is considered a legal nullity in all US jurisdictions.
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In practice, you would want to see all repurchase demands and settlements (and lawsuits based on those demands) during the period in which JPMC was asserting ownership or serving rights over transactions that had previously been the subject (before 9/25/08) of securitization issuance and sale.
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As a reminder, I will repeat the counterintuitive nature of this scheme. The fact that unregulated securities were issued does NOT mean that the certificates conveyed any right, title, or interest to any debt, note, or mortgage lien. The fact that certificate holders exist does NOT mean they are beneficiaries of a trust. And the fact that a bank is named as trustee does not mean they possess any duty, obligation, or authority to act on behalf of the certificate holders.
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If you don’t pay attention to the details, you are doing what the banks want you to do — lose.
================
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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, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting 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. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for 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 CONSULT (not necessary if you order PDR)
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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.

A Perfectly Good Deed Can Result in a Perfectly Bad Title

see https://www.law.com/njlawjournal/almID/1202429165401/

In an article by New Jersey attorney Dennis M. Gonski | Updated on March 18, 2009, the qualities of “real title” are clearly specified. His “wild deed” commentary applies equally well to promises of title or implied promises of title to liens.

My point in directing your attention to this article is that Gonski takes on the most popular misconception: that the paper instrument is the event. If that were true, the Brooklyn Bridge would belong to thousands of people.

His second major point is that promises are just promises. They are only as good as the intent of the party making the promise or implied promise.

The fact that a title insurer is willing to issue a policy does not mean you are covered if the grantor had no legal title. This is the scenario in most conveyances from property classified as “REO” after a void foreclosure sale.

And now, to my point: the banks rely on the fact that their fabricated paper instruments have been prepared, executed, and recorded with all the required formalities. They also rely on human nature.

We believe what we see. But the document that says the property is transferred or that the lien is transferred is only a promise. Looking at the document, you cannot know whether the promise has been fulfilled.

And that is why we have a whole body of law that describes when the promise is to be treated as fulfilled. So on a warranty deed, if the grantor possessed title based on a title chain going back generations before him or her, there were no other outstanding conveyances appearing after a period of time, and the grantor had, in fact, received the consideration recited in the deed, then the law treats the promises contained in the deed to have been fulfilled. The matter, for legal purposes, is settled.

Applying that simple proposition to the promises contained in an assignment of lien or assignment of beneficial interest, we can see what Attorney Gonsky was talking about. He unequivocally states that despite any legal argument to the contrary and formal court decisions to the contrary, that void title is void. And that status is fatal, incapable of correction. All such documents are to be treated as legal nullities — i.e., for purposes of legal actions they are treated as if they didn’t exist at all — even if they are recorded.

Gonsky’s article makes my points using much simpler explanations than I have done. If the title is void and title has no statute of limitations (i.e., except in scenarios of adverse possession), then all the instruments in the world that make promises based upon grantors who possessed no title to the lien or the property are all legal nullities.

His point that all such instruments are legal nullities is both well-founded by reason and well-established in law. The transfer of a lien without the grantee acquiring the underlying obligation from the grantor means that an essential attribute of a valid assignment is missing.

That fact is also corroboration of the narrative that the grantor had no right, title or interest to convey, and neither did the predecessor of the grantor, even though all such promises and claims were made in writing and duly executed and recorded according to law.

In practice, most lawyers and pro se homeowners dilute their narrative by immediately attempting to go back to all of the grantors. This is a mistake. The strategy requires more nuance than that.

The central and relevant question at bar is whether the presently named claimant has suffered a legally recognizable loss that was caused by the homeowner’s misbehavior according to the implied loan “contract.” [Keep in mind that residential transactions never have a loan agreement. The existence of several documents implies it].

So the factual question that is relevant is not whether the claimant can be argued as being the “holder” of a note or the “assignee” of an assignment of interest. The relevant question is whether the claimant can produce what lenders have always produced in foreclosure cases up until the era of securitization starting in the late 1990’s: the claimant’s ledger showing the history of the “loan” from inception to the present.

“We have been doing this for 20 years” does not bridge the gap. it does not cure fatal title deficiencies.

This is also true in cases where judges have ignored the existence of a well-timed notice of rescission under TILA. In that case, a federal statute asserts the law of the land, to wit: upon such notice, the mortgage lien is extinguished by operation of law and the liability under the note is also extinguished by operation of law.

A claimant has an alternative way under the statute to collect the underlying obligation, but then they would need to show that they owned the underlying obligation — something that nobody has been able to do for more than 20 years. So instead they have persuaded judges to enter void judgments based on extinguished mortgages liens and notes.

Several County recorders have stated openly and directly that marketable title was becoming extinct under this scheme. As  Gonsky points out, they were and remain absolutely correct. Accordingly, the title has NOT changed. This entitles the record title owner who IS “seized” with the property to eject (evict) anyone from the property.

And contrary to those who spout things about adverse possession, it does not apply unless the current possessors of the property have been on the said property with the intention of taking over title purely by possession for a period that in most states is 20 years.


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, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting 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. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for 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 CONSULT (not necessary if you order PDR)
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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.

 

The Case for Discipline of Attorney Who Present False Claims in Support of Foreclosure

Lawyers are not permitted to make up claims and file lawsuits or other processes to seek a remedy. They must be representing a client who is the owner of the claim. In foreclosure, this is not the case. Wall Street has weaponized the necessary standard protections for lawyers into a vehicle for promoting false claims.

The failure of counsel to

(1) report that they do not represent the named claimant and that they have no information from any client or other source supporting the existence of a claim possessed by the named claimant, and

(2) actively violating the ethical rules by presenting the false implication that they represent the named claimant,

is a clear violation of the most basic attribute of ethical disciplinary rules: the goal of giving the court the best information available upon which it could base a reasonable decision. 

see https://e-discoveryteam.com/2018/10/14/judge-pauley-reminds-lawyers-of-their-duty-to-verify-client-representations/

I am amending all past advice after careful reflection and research:

Because lawyers are the face of the scheme, they are often blamed for their clients’ illegal conduct and false testimony. Usually, this provides no foundation for a  civil or disciplinary claim against the lawyer, much less a criminal complaint.

I have consistently counseled lawyers and pro se homeowners to refrain from making such claims because the courts are made up of lawyers who protect each other. There are also solid legal reasons why such claims fail and should fail.

It is not up to the lawyer to prove the case to himself or herself, it is up to them to advocate h best possible narrative on behalf of their client. If it were otherwise, no lawyer would ever take any case, one way or the other. And that is because all witnesses are unreliable, and most of them lie.

Here are some comments from an article I recently received from a reader (and note what I have highlighted in bold):

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The ethics issue is whether [the lawyer] violated Model Rule of Professional Conduct 3.3, Duty of Candor Toward the Tribunal, which states:

Advocate

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

The official Comment to Rule 3.3 has some good insights into the purpose of this requirement:

Offering Evidence

[5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client’s wishes. This duty is premised on the lawyer’s obligation as an officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer does not violate this Rule if the lawyer offers the evidence for the purpose of establishing its falsity.

6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness’s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false.

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

The point here is that lawyers representing foreclosure mills fail to make an important disclosure to the court that is absolutely required under the rules of court and the disciplinary rules: the truth about their representation. It should be noted that when challenged, the lawyer admits to not having contact with nor knowing the identity of the creditor.

The lawyers do not represent XYZ Bank, NA as trustee for a trust. They have never had any contact with XYZ, nor have they received instructions from XYZ and XYZ does not pay them. XYZ is not a client in the remotest sense of the word since XYZ is neither the prior recipient of any money due from the homeowner nor the future intended recipient of any money from the homeowner or the property of the homeowner.

The lawyer who records the notice of default and sends the notice of sale or who files a foreclosure complaint has done so solely because the lawyer has agreed to accept electronic instructions from an anonymous source. The lawyers in the law firm that acts as the foreclosure mill are instructed by their superiors to use the information and forms provided in the electronic communication to secure a foreclosure sale.

To whom does that law firm and that lawyer report? How do they report? They report using the same medium of communication to a regional law firm that has been retained by someone other than XYZ Bank.

The failure of counsel to (1) report that they do not represent the named claimant and that they have no information from any client or other source supporting the existence of a claim possessed by the named claimant, and (2) actively violate the ethical rules by presenting the false implication that they represent the named claimant, is a clear violation of the most basic attribute of ethical disciplinary rules: the goal of giving the court the best information available upon which it could base a reasonable decision. 

Lawyers are not permitted to make up claims and file lawsuits or other processes to seek a remedy. They must be representing a client who is the owner of the claim. In foreclosure, this is not the case. Wall Street has weaponized the necessary standard protections for lawyers into a vehicle for promoting false claims.

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

PRACTICE NOTE: THERE MIGHT BE A GOOD ARGUMENT HERE FOR  CHALLENGING THE OPPOSING LAWYER FOR HAVING A CONFLICT OF INTEREST — UNLESS THE CONFLICTING PARTIES ALL SUBMIT SWORN STATEMENTS WITH THE COURT WAIVING THE CONFLICT.

Here is my thinking. The foreclosure mill is not acting on behalf of any client with which it maintains a formal or informal attorney-client relationship. It is acting as the nominee/agent for a regional law firm that has been hired by a sham intermediary representing the interests of an investment bank that is NOT a creditor.

So the foreclosure mill lawyer is following the instructions of his superiors in a foreclosure mill that has a contractual relationship with a regional law firm that is not a client. The regional law firm has been tasked with monitoring litigation and issuing directions and instructions to the foreclosure mill.

Although it is contractually obligated to its client — i.e., the sham intermediary who hired the regional law firm — the regional law firm is in a position to know, with certainty, that the client has no interest in the litigation. In fact, it is likely tha that the regional law firm — and not the foreclosure mill — has actual knowledge that the foundation for claims of authority to pursue litigation and claims is an investment bank, the identity of which is well known to them.

So my theory is that an expert affidavit that details all this might be sufficient (ie., probable cause) to challenge the opposing lawyer for lack of authority to represent the named claimant and also for conflict of interest in the absence of either

  • (a) a sworn affidavit from someone who is an officer or employee of the named claimant or
  • (b) sworn affidavits from the regional law firm, the sham intermediary and the investment bank that waives any potential conflict of interest and waives attorney-client privilege — something you will NEVER see.
  • You might need such an affidavit from the company currently claimed to be a servicer as well as potentially its predecessors since most “reports” supposedly generated from transactions conducted by the “Servicer” relies on similar reports by predecessors.

Just a thought. I could be wrong.

I think the problem here is what I have been complaining about for decades. For all their talk and boasts, lawyers generally avoid battle, and when confronted with an inevitable battle, they seek the easy way out. The few lawyers who seem to win their cases consistently are those who are not afraid to get opposing counsel and the judge angry enough to kill them and their client. They are not afraid to receive incoming hits or respond to the blows landed by their adversary or the judge.

The starting point, even for good lawyers, is legal research. But Wall Street has turned that on this head as well.

Anyone who does legal research will find scant appellate opinions in favor of the homeowner where the opinion was approved for publication. So you find very little support for the proposition that the “mortgage loans” or “foreclosures” were scams that invoked remedies that were not legally, morally or ethically available.

The reason for this is a simple strategic decision, If you are filing millions of foreclosures and you lose only thousands of them, you don’t appeal because you don’t want to risk creating a body of appellate law that supports homeowners. So the foreclosure mills or their bosses never appeal a loss.

Second, when homeowners win their cases, they are greeted with offers of settlement that are hard to resist. This prevents the entry of judgment, or the judgment itself becomes hard to find as the record is scrubbed. Many lawyers will tell you this cannot happen. But I know from personal experience that there are dozens of cases where I personally have proof that it happened. And I have proven it to highly skeptical lawyers.

So if the person doing legal research using advanced algorithms like Lexis Nexis, they will never find the action, the result or any of the papers filed by either side.

This leaves most homeowners and their lawyers with the idea of proceeding to mount an expensive challenge as an article of faith — to do what the Federal and State regulatory agencies are supposed to do but didn’t. I have repeatedly proven the defense narrative in court such that I can say without any reasonable doubt that all of these cases are winnable — even if few of them are actually fought to a successful conclusion.

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

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, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting 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. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for 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 CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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.

Sen Elizabeth Warren Endorses Katie Porter for California Senate Seat 2024

From Senator Warren:

 

Warren Democrats
Neil,

I couldn’t be more excited about my first endorsement of the year: Katie Porter is running to represent Californians in the U.S. Senate, and she has my full support.

I want to share more about why I’m supporting Katie below, but if you’re on board now and ready to help kickstart Katie’s campaign for Senate, please split a donation between our campaigns if you can. As an early supporter, you’d help ensure Katie has the resources she needs to build a winning campaign — and you’d help make sure we can fight for working families together in the Senate. 

If you’ve saved payment info with ActBlue Express, your donation will process automatically:

>

I met Katie long before either of us imagined we’d be serving as elected officials. She was one of my law students, studying consumer law. Even then, she showed a deep-down commitment to making a difference in people’s lives.

I still remember the first day we met. My class was held early in the morning, meaning a lot of students had their heads down, trying to avoid being called on. But not Katie. She was determined and ready to go. When the first answer she gave wasn’t her strongest, she came to my office hours and said, “Please keep calling on me. I am going to learn to do this.”

Years later, in 2012, then-Attorney General of California Kamala Harris secured a settlement of $18 billion from our country’s biggest banks for their predatory lending practices that spurred the 2008 housing crisis. She asked if I knew anyone who could work as an “independent monitor” to make sure the Big Banks actually paid California families the money they were now owed. It was a massive undertaking, but I knew just the person for the job: my former student Katie Porter. She served as a watchdog over Wall Street banks and held their feet to the fire to ensure California families received the billions they were owed.

When she decided to run for Congress in 2018, I was very happy to support her. I knew that we needed more people like Katie in Washington — who understood the real experiences that working families faced, who had the courage to stand up to big corporations and special interests, and who would fight to make our government work for everyone, not just the rich and powerful. A Democrat hadn’t represented her district for decades, but she knew exactly how to personally connect with voters, build a strong movement, and win. She flipped that seat, and she’s been winning for working people ever since.

Simply put, Katie delivers. She’s smart and she isn’t afraid. She stands up to Wall Street and Big Pharma, she holds fossil fuel companies accountable, and she fights to protect our rights. She is exactly who Californians need as their next Senator, and I’m proud to endorse her.

We need her (and her whiteboard) in the Senate. And we want you on our team. She’s running a people-powered campaign just like ours. I’d be so grateful if you could split a donation between our campaigns today to support our fight for working families in the Senate.

Thanks for being a part of this,

Elizabeth Warren

P.S. I just have to share this old photo of us from when I first got to know Katie. I’ve been a fan of hers for years and years, and it would be a great honor to serve alongside Katie in the Senate in the next chapter of her career.

Photos of Katie Porter with Elizabeth Warren while at Harvard Law School

Beware Motion for Substitutions of Trustees, Plaintiffs and Credit Bidders!

By laundering the title to the recorded lien AFTER the homeowner has failed to derail the false claim, the foreclosure mills have lulled most homeowners and most lawyers and judges into a state of complacency wherein they miss the fact that the new substitution — often without permission of the court — is an admission that the homeowner’s defense narrative was correct from the beginning.
US Bank Trust, N.A. as trustee for LSF9 Master Participation Trust vs. XXXXXXXX Superior Court of Washington County of Kitsap.
*
The name is an off-shoot (subsidiary) of US Bank NA. That change happened in the foreclosure marketplace when it became apparent that US Bank faced potential liability for violation of statutes in which it licensed the use of its bank name in (1) foreclosures against homeowners and (2) the sale of securities to investors — country to the laws of the state in which the transaction occurred and the foreclosure was being pursued. Only Banks are permitted to use bank names. Nonbank entities are generally required to seek permission from the commissioner of banking, who might grant the use of the word “bank” in the name of an entity.
*
The use of the word bank is concealed behind a reference to an actual bank that is not serving any functions as either a bank or a trustee. Hence a subsidiary was formed to defend any claims if they arose. The liability of US bank or US bank was indemnified by the undisclosed party who was using the name -“US Bank”. That undisclosed party was an investment firm (securities brokerage and underwriting) that often used the moniker “investment bank.” This moniker produced confusion in the marketplace contributing to the 2008 crash. The Glass Steagal Act was specifically enacted to prevent securities firms from calling themselves banks or acting like one. The fix was over a weekend when the “investment banks” were converted to licensed commercial banks chartered by the United States government.
*
The substance is that there is no trust or trustee and no “thing” (res) subject to management by the named trustee, nor are there any active participants or beneficiaries. Hence the LSF9 name is also a ruse. The gravamen of the homeowner’s defense is that the party named as Claimant (Plaintiff) had no legal existence and even if it did fulfill the conditions precedent to form a legal fictitious business entity, neither US Bank nor LSF9 claimed or received any money from the homeowner in the case at bar or any other homeowner. Nor were they expecting or entitled to receive the proceeds of a forced sale in foreclosure.
*
However, under litigation and immunity and basically anonymous electronic communications, the lawyer for the foreclosure law firm was allowed to and instructed to make a claim on behalf of US bank and LSF9 that was unknown and disclaimed by both. US bank, US Bank Trust, and LSF9 are not clients of opposing counsel, nor have they had any contact regarding any unpaid receivable allegedly owed by the homeowner. None of them maintain any ledger on which an asset is shown bearing a description and name of an obligation due from the homeowner at bar.
*
Previous attempts to establish these facts have failed. But the most recent events clearly show that the defense narrative is completely correct. Mirroring a tactic used in many states across the country, the securities firm who retains control (but not ownership) over the money trail and the paper trail the laundering of title occurs after orders or judgments are entered. Such is the case at bar.
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Opposing counsel now seeks us to believe that US Bank or US Bank trust or LSF9 trust wants to transfer their spoils of victory to a new entity — in order to make it easier to distribute the proceeds of receipts from the forced sale of the property. No transaction is alleged nor any other intent to gift the nonexistent “ownership” to the party whom they now wish to serve as the sham conduit through which the proceeds will be distributed as revenue and profit and not one penny distributed to anyone to reduce an outstanding account receivable due from the homeowner.
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No transaction has ever occurred in which any underlying or even inchoate obligation of the homeowner has been purchased or sold for value. All instruments purporting to transfer lien rights were void and were shams created for the sole purpose of foreclosure and are not reflected on the books and records of any creditor, lender, or successor lender.
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All records produced as a record of transactions conducted by any “servicer” are false since those companies do not perform any servicing functions. Those records are not “business records” since they contain no record of any business conducted by the alleged servicer. The process of collection, administration, correspondence and enforcement is performed by financial technology company serving only the securities investment firm that started the scheme as set forth above.
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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

Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting 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. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for 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 CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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.

CFPB Proposes Rule to Establish Public Registry of Terms and Conditions in Form Contracts That Claim to Waive or Limit Consumer Rights and Protections

FOR IMMEDIATE RELEASE:
January 11, 2023

CONTACT:
Office of Public Affairs
press@cfpb.gov

CFPB Proposes Rule to Establish Public Registry of Terms and Conditions in Form Contracts That Claim to Waive or Limit Consumer Rights and Protections

Companies can use terms and conditions in non-negotiable form contracts to try to hide consumer harm, to stifle criticism about products and services, and to undermine consumer financial protection law

WASHINGTON, D.C. — Today, the Consumer Financial Protection Bureau (CFPB) proposed a rule to establish a public registry of supervised nonbanks’ terms and conditions in “take it or leave it” form contracts that claim to waive or limit consumer rights and protections, like bankruptcy rights, liability amounts, or complaint rights. In some cases, terms and conditions in non-negotiable form contracts mislead consumers into believing the terms or conditions are legally enforceable. Under the proposed rule, nonbanks subject to the CFPB’s supervisory jurisdiction would need to submit information on terms and conditions in form contracts they use that seek to waive or limit individuals’ rights and other legal protections. That information would be posted in a registry that will be open to the public, including to other consumer financial protection enforcers.

“Some companies seek to censor their customers and strip them of their rights by inserting fine print into non-negotiable contracts,” said CFPB Director Rohit Chopra. “The CFPB is proposing a registry of these contract clauses to find out where people are unable to speak up when they’ve been harmed.”

Many companies’ financial products and services require consumers to sign lengthy form contracts. The companies write the form contracts as well as define any choices offered, and consumers cannot negotiate. Some companies slip terms and conditions into their form contracts that try to take away consumer protections, try to limit how consumers exercise their rights, or try to quiet consumer complaints or criticism, and more broadly, the terms and conditions potentially undermine consumer financial protection law. There is often little choice for consumers except to sign these form contracts due both to their market pervasiveness and the critical role the products and services play in people’s daily lives.

Some examples of terms and conditions that would be included in the registry are those that:

  • Waive servicemembers’ legal protections: The Military Lending Act (MLA) and the Servicemembers Civil Relief Act (SCRA) set limits on the cost of loans for military families and include numerous other important consumer protections. The MLA broadly prohibits waivers of legal protections and arbitration agreements, and the SCRA limits waivers of its protections. However, some companies include banned arbitration agreements to try to avoid accountability for loans to military families. Other companies have faced regulatory action related to how they obtain waivers of SCRA protections.
  • Undermine credit reporting rights: In contracts for credit monitoring products, some consumer reporting companies use terms and conditions that seek to block the ability of consumers to pursue legal action, including through class action lawsuits, to remedy alleged violations of the Fair Credit Reporting Act. For example, a term or condition may seek to limit liability to a class of consumers when a consumer reporting company fails to reasonably investigate inaccurate information on numerous consumer reports.
  • Limit lender liability for bank fees caused by a lender’s repeated debit attempts: In contracts for short-term small-dollar loans, some companies seek to waive liability for bank fees that borrowers incur when the lender engages in repeated attempts to debit payments from an account that lacks sufficient funds to cover the debit.
  • Mislead consumers by using unenforceable waivers in mortgage contracts: CFPB examiners have regularly identified deceptive acts and practices committed through mortgage lenders’ use of waivers and limitations that are inconsistent with the Truth in Lending Act’s restrictions on the use of waivers and limitations in such transactions.

The CFPB’s rule proposes to require nonbanks that are subject to CFPB supervision and that use form contracts to impose terms and conditions that limit or purport to limit consumer rights and legal protections to register with the CFPB. The proposed rule, if finalized, would:

  • Identify and collect information on form contract terms and conditions that seek to waive or limit consumer rights and other legal protections: Under the proposal, the CFPB would seek information on contract terms and conditions seeking to waive any constitutional, statutory, or common law legal protection, right, or defense; restrict the ability of consumers to complain; limit the time or place for consumers to bring legal actions; limit liability amounts; waive class action rights; and impose arbitration provisions. Both company information and information about the use of the terms and conditions would be published.
  • Increase market transparency and improve risk-based oversight: When standard terms and conditions seek to limit the ability of consumers to protect themselves, increased public oversight is necessary, and the registry would provide important support for the CFPB’s monitoring of supervised markets. Specifically, collecting and publishing information about the identities of nonbanks and their contract terms and conditions would allow for enhanced risk-based government oversight. The CFPB and agencies from all levels of government would be able to consider the information when prioritizing their supervision and enforcement resources.

Apart from specified exceptions, all nonbanks subject to CFPB supervisory jurisdiction, including those operating in payday lending, private student loan origination, and mortgage lending and servicing would be subject to this proposed rule. Larger participants operating in student loan servicing, automobile financing, consumer reporting, consumer debt collection, and international remittances would also be subject to the rule.

Today’s proposed rule continues the CFPB’s efforts to increase public transparency and to improve oversight of nonbank financial institutions. In December 2022, the CFPB proposed a rule to establish a registry of nonbank financial institutions to detect repeat offenders.

Read the Nonbank Registration of Certain Contract Terms and Conditions; CFPB Proposal Regulation Text.

Read Director Chopra’s statement on the proposed rule.

Public input will inform revisions to the regulation text. The public comment period will remain open for 60 days following publication of the proposed rule on the CFPB’s website or 30 days following publication of the proposed rule in the Federal Register, whichever period is longer.

Consumers can submit complaints about financial products and services by visiting the CFPB’s website or by calling (855) 411-CFPB (2372).

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The Consumer Financial Protection Bureau is a 21st century agency that implements and enforces Federal consumer financial law and ensures that markets for consumer financial products are fair, transparent, and competitive. For more information, visit consumerfinance.gov.

Katherine Ann Porter, champion of homeowners and consumers, is running for Senate. If you care about foreclosure fraud you should support her bid for Senate

see https://livinglies.me/2017/10/11/katherine-ann-porter-author-of-2007-study-revealing-the-destruction-of-notes-is-running-for-congress/

It is no exaggeration that Katie Porter is why this blog started. While at the University of Iowa, she conducted a study with startling revelations. The discovery that original promissory notes were destroyed most of the time made it possible for thousands of homeowners to defend their homes from false claims seeking foreclosure successfully.

As a protégé of Elizabeth Warren, she directly influenced political campaigns and legislation after the study was complete.

After Katie Porter revealed that at least 40% of the promissory notes were destroyed and that the lawyers and “Servicers” seeking foreclosure were relying on images created by machines to produce a faux original promissory note, Elizabeth Warren drilled representatives of agencies and banks to reveal that the figure was over 95%.

As a House of Representatives member, her questions to agency representatives and private companies were an unparalleled display of 5 star cross-examination skills. Wall Street fears her.

She is climbing the political ladder, and we should help her for ourselves and our children and grandchildren.

In the monetized political environment we have allowed to flourish, she will always need money to battle those with bottomless pockets who will throw everything they can at her to prevent her from becoming  Senator. Let’s make them fail and make her a winner once again.

Go to https://katieporter.com/

KEEP IT SIMPLE. DON’T GET LOST IN THE WEEDS

The practice hint for all this is NOT to trace all the layers and steps. The question in the case at bar in every foreclosure is whether there is an identified claimant with a claim based on the existence of an unpaid loan account (collateral account) on its own ledgers

Some people get upset with me when I tell them that they are asking the wrong question. The reason that they are asking the wrong question is that they usually have no knowledge or experience as to the basic requirements of civil procedure. They don’t know how a claim is filed. They don’t know the requirements for filing a claim. Accordingly, they fail to challenge basic deficiencies in the filing of claims against them.

The wrong question usually has something to do with how to trace the intricacies and complexity of securitization. There is no other way to say it other than that is the wrong question – if your goal is to win the case. Every good defense trial lawyer will tell you that winning the case starts with challenging every part of the claim against their client.

From its humble beginnings in October 2007, this blog has been dedicated to two propositions: (1) the public needs to be educated as to what Wall Street did and why they did it, and (2) homeowners need to be educated about the possibilities for winning a case in which a claim of foreclosure is filed against them.

In the service of public education, I may have confused the homeowners. This is not an exercise in which you will educate the judge about the intricacies of a securitization scheme that neither of you truly understands.

Wall Street has devised a deadly scheme that invites, pro se, litigants and lawyers to get lost in the weeds, fall through trap doors, and eventually give up on the largest investment the homeowner has ever made. This scheme has only one goal: to convert the equity in the house to money in the pocket of the investment bank. They don’t care whether you owe the money. As long as they can successfully make claims against homeowners, they will do it.

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It is all layering. That means that the real parties doing the real things and collecting the revenue and profit from the scheme are layered over by a series or tranches of names that may or may not be tied to properly registered business entities that were formed in some jurisdiction.

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OTHER THAN FORECLOSURE PLEADINGS, you see this in most pleadings as, for example, US Bank, a National Association federally chartered bank” or “XYZ Bank, a Florida corporation organized and existing under the law of the state of Florida.”
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It should go without saying that in order to file any document in court, the filer must be identified. But the problem is not with the judge or the clerk. When they receive a pleading that is technically deficient, they are not empowered to do anything about it unless certain filing conditions (payment of fees, form of pleading, or notice) are absent. The system is structured to address those issues only when they are raised.
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So the problem is with homeowners who do not know the system (the rules of the game) and with lawyers who forget the rules and make quick assumptions based on skimming (rather than reading) the pleading. In doing so, they often skip the most basic fact: that the claimant (Plaintiff or beneficiary) has not really been identified.
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This feature is what enables the foreclosure mill, to act at the best of another law firm, which is answering to an investment bank through intermediaries and their legal departments. By creating a faux plaintiff or beneficiary, they have created the vehicle for the disbursement of funds, none of which goes to the named faux plaintiff or beneficiary.
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FINTECH is an essential part of this scheme. Like the investment banks, the major financial technology companies run their businesses through names and sham entities as described above. Like the investment banks, none of the companies that actually perform functions or make decisions want to enable anyone —least of all the government — to label them as servicers or lenders or successor lenders.
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The practice hint for all this is NOT to trace all the layers and steps. The question in the case at bar in every foreclosure is whether there is an identified claimant with a claim based on the existence of an unpaid loan account (collateral account) on its own ledgers (not that of a servicer). The additional question is whether that unpaid receivable account on the accounting ledger of the claimant shows payments from the homeowner and the current balance due to the claimant.
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The reason is simple. If the loan account exists on the accounting ledger of the claimant and the named claimant has been receiving the homeowner’s payments until they stopped, there is a legally enforceable claim. The amount due is clearly shown.  But if the unpaid loan account does not exist on the ledgers of the named claimant, then the foreclosure is a false claim.
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Both pro se litigants and lawyers for homeowners skirt the question and try to defeat the case by searching for technical grounds. There is no need to do that. That strategy underscores the judge’s bias that the homeowner is attempting to escape a legitimate debt owed to the claimant.
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Your job is to defeat the first premise. You don’t do this by proving that no legitimate debt is owed to the named claimant. You defeat the action by showing that the opposing lawyer is unable or unwilling to produce the unpaid loan account on the ledger of the claimant.
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Remember: if the claimant is a trustee, then the trustee must have a trust account in which there is an unpaid loan account that the trustee actively manages. If that is not true, then there is no trust. Also, remember that no investor who holds certificates issued in then the name of the so-called trust has any legal or equitable right to claim any payment from a homeowner. The investors are NOT beneficiaries of the trust.
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So you have no trustee, no trust, and no beneficiaries. Nonetheless, the trustee is usually named as the winner of the case without any knowledge of this existence or any power over its enforcement. All this is traceable to the fact that nobody aggressively and persistently pursues corroboration of the basic premise that the named claimant possesses both a claim and a history of prior receipts of payment. 
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THEY DON ‘T PURSUE IT BECAUSE THEY ARE AFRAID OF THE ANSWER — I.E., THEY THINK THE ANSWER WILL BE YES, THERE IS A CLAIM. DON’T BE AFRAID. EVEN IF THE HOMEOWNER OWES MONEY TO SOMEONE, IT IS NOT THE CLAIMANT THAT HAS BEEN NAMED IN THE FORECLOSURE ACTION. 
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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 DONATENeil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting 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. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for 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 CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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.

 

Banking Lesson to Aid Homeowners in Discovery or Statutory Demand Letters

Homeowners and their lawyers look at a canceled check and understandably and reasonably come to an erroneous conclusion. They think the check shows who physically received the check, who deposited it into a depository account, and who owns that account.
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Therefore, they erroneously conclude that the report issued under that name was prepared by or on behalf of the name they think they know, and that report is waived into evidence as a business record under an exception to the hearsay rule barring hearsay from the record of the evidence that a judge is permitted to consider.
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This forms the pretext under which nearly everyone believes that payments from the homeowner were due, payments made by the homeowner were posted as a reduction of the balance due on an accounting ledger of the designated owner of the obligation, and that the claimed amount due is equal to the amount shown on that ledger. The problem, of course, is that there is no such ledger, and there is no amount due.
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All of this stems from the natural human tendency to believe what we read. Every con job usually involves the fabrication of some document. And the more official it looks or the more official the circumstances appear, the more it is believed. Wall Street has weaponized this phenomenon into the biggest economic scam in human history. And for good measure, we should note that repetition places fiction into the category of fact.
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It has been so successful that even government officials have erroneously concluded that they know something. Mainstream media stopped all investigative reporting back in 2010 just went they were getting close to the truth.
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So you look at the markings on a negotiated check. What is contained in the depository agreement or instructions? You don’t know. But when looking at these cases, I do know that this shows clear evidence of the customary practice of dealing with payments from homeowners. This is the process of concealment and cover-up.
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The lawyer or homeowner needs to know how the system works before they decide on which facts to contest — i.e., which documents to ask for and what testimony you want to elicit from an authorized officer or employee of the designated company. This is done by notice if the company is a named party or by subpoena if the company is not a named party.
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Banking lesson.

  1. A depository account is a liability of the bank that accepts deposits.
  2. The owner of the account is the depository bank.
  3. The owner of the contents of the account is the depositor — or whoever is designated by the source of the deposit.
  4. The owner and the depository bank enter into a contract that covers the terms of the deposit and the availability of funds after the deposit. That agreement sets forth various possibilities and what happens when one of those possibilities occurs.
  5. In business situations, it is common to have the name of an account shown as whatever name is designated by the owner in the contract. So, for example, if the owner is JPMorgan Chase, it could give a name to the account of SPS. So when people issue payments to SPS, it is going to JPM Chase. But the people think they paid SPS. Therefore they think they know that SPS is a servicer.
    1. And they think that SPS must have deposited the check to its own account and then issued distributions to a creditor or agent of the creditor.
    2. Therefore they think that the report issued under the name of SPS was prepared by SPS and represents transactions conducted by SPS. This results in the report being accepted as a “business record,” which is accepted as a substitute for the collateral loan account owned by the designated claimant (creditor or owner of the lien).
    3. The court proceeds without any evidence of the existence of an unpaid loan account, and judgment is entered as though such evidence and been produced.
    4. However, if SPS did not have an employee or officer receive the check and deposit it into an SPS account, any report issued regarding homeowner payments and balance due would be hearsay and not allowed into evidence as an exception to the hearsay rule. In plain language, the report would be a compilation of reported facts from third parties other than SPS. That is exactly what the hearsay rule was designed to prevent because of the opportunity for mischief.
  6. Also, in business situations, it is quite common to set up a depository account that is cleared every night. The terms of clearance are set forth in the depository agreement, which probably refers to receiving instructions from the owners. Those instructions must be in writing.
    1. The terms of clearance may create a funnel to one other account or many other accounts —  each owned and operated as described above.
    2. So continuing our example, if homeowner Smith sends a check to SPS, something is happening that is not apparent but also NOT illegal.
    3. The check is not received by SPS and is never deposited into any account that is owned or controlled by SPS. Therefore SPS has no record of receiving it because it didn’t receive it and no record of making any deposit because it made no such deposit.
    4. It is deposited, in our example, into an account owned by JPMorgan Chase because JPM retained control of the money trail and the paper trail — even though it did not legally own or even claim to own any right, title, or interest to any payment from homeowner Smith.
      1. In turn, the check deposited to the account name of SPS is cleared to several different accounts, each also controlled by JPM. Some of those accounts are to subsidiaries or controlled business entities organized and existing under the jurisdiction of off-shore places.
      2. But again, the reasonable conclusion drawn by Homeowner Smith is that he owes a debt, and it is being collected, deposited, and distributed to creditors as he makes payments. This is not the case. It is never the case. But as long as the homeowner believes it, it is likely that his/her lawyer will believe it.
        1. And thus, the facts become uncontested even though they are untrue. Once that is established, the judge has no choice but to apply the uncontested facts to the case and then enter a ruling based on those uncontested facts.
        2. Are they lies? Yes, but they are reasonably believed by both the homeowner and the lawyer. Federal and state agencies are chartered to address widespread problems like this one. But the failure of those agencies to act dumps the burden onto the uninformed or under-informed homeowner and the uninformed or under-informed lawyer for the homeowner.
      3. There is a record of this bank activity, and it is accessible through the rules of discovery and, to a lesser degree, through the laws governing qualified written requests and debt validation letters.
        1. Whatever value the QWR or DVl might have is usually squandered by well-meaning but uninformed homeowners who attempt to substitute the QWR or DVl as a discovery demand. That only enables the recipient to ignore most parts of the request.
        2. Through enforcement of those laws and rules in court, homeowners win- not by proving that the other side is composed of dark figures who should be shot.
      4. The banks know that, and they employ thousands of lawyers to side-step the obligation to respond to any legal request regarding the ownership and control of any account.
      5. The structure of this plan leaves an essential question unanswered: who is the party that must respond to the QWR or DVL?
      6. To the extent that the names used by JPM do not represent companies that perform any function, it is difficult under current rules to ascribe an obligation to answer the QWR or DVL.
      7. But there is one exception to that “rule.” If one of the company names used by JPM is, for example, Bank of New York Mellon, U.S. Bank or Deutsche Bank National Trust Company, and that company is represented as the owner of the right, title, and interest to payments received from homeowner Smith, then that Bank is required to answer the QWR and DVL.
      8. Delegation of the obligation to respond to a “servicer,” either real or apparent, is insufficient. There must be an answer from the designated “owner” — or the answer printed up under the name of SPS as “servicer” is unauthorized.
        1. That answer should be signed by an authorized officer or employee of the bank asserting ownership of an unpaid obligation due from Homeowner Smith and, if they so choose, that they have designated the “servicer” to answer questions more fully.
        2. But it should also include a copy of the collateral account or loan account, as it might be named. This is the sticking point when the homeowner wins.
          1. The reason is simple: there is no collateral account. There is only a faux collateral account presented as a Payment History for purposes of illegally obtaining profits and revenues from making false claims for restitution. There is no collateral account —- or at least not one owned by the designated “owner”– because everyone is ducking liability under Federal and State lending laws.
  7. The problem here for homeowners who are victims of fraudulent and fake claims is that they and their lawyers stop looking once they see the canceled check. As a result, the Judge is never presented with a contested issue about what goes on behind the iron curtain. But Homeowners know that they are being screwed and that their opponents are getting paid for nothing.

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PRACTICE NOTE: All payments of all types are now electronic. Virtually all money is electronic in the form of 1s and 0s on a computer server that is accessed through desktop applications. A paper check, therefore, is no longer different from any other payment, including but not limited to various names attached to payments:

  1. ACH
  2. Wire transfer
  3. Automatic deduction
  4. Zelle

The processing of all such payments is the same, with some small differences. Basically, every payment is initiated by the payor (the signor on what would be a check), which is then marked as received by the party who physically received the payment. If electronic, and there is no check,  the receiver is the party who is the owner of the account into which the deposit was posted. The rest is as above. tracing this is fairly easy once you force the opposition to comply with the statute and the rules of procedure. All payments involve the following entities:

  1. Issuing bank and account processor
  2. Intercept processor
  3. gateway processor
  4. Receiving bank and account processor

The Federal reserve bank is usually an intermediary/intercept/ processor also.

When attempting to put factual issues into dispute, you are looking for the actual “tracking” information as the payment is passed from one electronic source to another.

If an assignment says that it was executed in consideration of $10 and other valuable consideration, you want to know how the $10 was paid and what was the other consideration. If payments are alleged to have been made electronically, you now know what you are looking for —electronic interbank receipts issued by intercept, gateway, and account processors.

 

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

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, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting 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. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for 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 CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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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