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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.

The LivingLies Blog is the vehicle for a collaborative movement to provide homeowners with the tools needed to confront illegal foreclosures.

There are free forms, articles, and discussions of statutes, case precedent, and policy on this site.

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Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: CLE, Fort Lauderdale, Garfield Continuum, Livinglies, LOAN SPECIFIC ACCOUNTING AND ANALYSIS, LOAN SPECIFIC SECURITIZATION ANALYSIS, LOAN SPECIFIC TITLE SEARCH AND ANALYSIS, MEMBERSHIP, NEIL GARFIELD, SEMINARS, SUBSCRIPTION | 95 Comments »

11th Circuit Ct of Appeals Breaks New Ground — in favor of homeowners!

Posted on May 26, 2022 by Neil Garfield

Daniels v. Select Portfolio Servicing, Inc., No. 19-10204 (11th Cir. May 24, 2022)

The fact pattern sounds like something out of Gulliver’s travels. Statements are regularly sent to homeowners using the letterhead of a designated company who is claimed to be a servicer. Those statements are submitted because they are legally required to be sent to the homeowner. But they also are used as the foundation for claims to administer, collect or enforce the debt.

Such Statements of “account” misrepresent virtually everything — including the source of the statement, which is the work of a FINTECH third-party servicer working in this case on behalf of an investment bank and not SPS. Most of all they do not accurately describe the balance due on the alleged unpaid loans account and they are misleading because they imply such an account exists.

Any random survey of foreclosure cases on appeal in any jurisdiction reveals that there is always some component argument that the loan account is established, it is unpaid, it was a loan, and that someone is losing money because the homeowner did not make a scheduled payment.

This usually occurs because homeowners still believe the misrepresentations that were made to them at the time of “the closing” of what appeared to be a loan transaction. Hence, it never occurs to the homeowner or their lawyer to contest the original transaction or how it is reported later.

The Gulliver aspect of this is that lawyers who say they are representing banks who are trustees of trusts in which the loan account is owned and maintained have successfully argued that the statements are mandatory and not an attempt to collect a debt and therefore cannot result in liability under the Fair Debt Collection Practices Act (FDCPA) — even if the balance claimed as due is misstated or fraudulently represented.

This kind of hair-splitting is what sends homeowners screaming out of the courthouse with complete disrespect for the court system because they know what is right and they know that what just happened to them in court was wrong.

The 11th Circuit pierced through all of this in its analysis and decision, stating that the “servicer” can be liable for violations of the FDCPA by misstating material facts about the alleged claims in its statements and communications with the homeowner.

I should add that nobody addressed the elephant in the living room. Specialized Portfolio Services is owned and controlled by Credit Suisse which is (a) the source of credit to investment banks that arrange funding for “closings” with homeowners and (b) a co-underwriter of the certificates that are sold to pay back the loan.

Any such inquiry would result in the inevitable conclusion that these were not loan deals and that no lender or unpaid loan account receivable emerged from the transaction cycle.

As usual, the initial decision in Federal District Court was against the homeowner. The Circuit Court of Appeal reversed.

Daniels v. Select Portfolio Servicing, Inc., No. 19-10204, at *1 (11th Cir. May 24, 2022) (“Constance Daniels sued Select Portfolio Servicing under the Fair Debt Collections Practices Act, 15 U.S.C. §§ 1692 et seq., and the Florida Consumer Collection Practices Act, Fla. Stat. § 559.72, alleging that a series of monthly mortgage statements misstated a number of items, including the principal amount due. She claimed that, by sending her the incorrect mortgage statements, Select Portfolio violated the FDCPA’s prohibitions on harassment or abuse, false or misleading representations, and unfair practices. See 15 U.S.C. §§ 1692d, 1692e(2)(A), 1692e(10), 1692f(1). She also claimed that the statements violated the FCCPA’s prohibitions on harassment and on attempts to collect on debt that is not legitimate. See Fla. Stat. §§ 559.72(7), 559.72(9). The district court dismissed Ms. Daniels’ complaint with prejudice, agreeing with Select Portfolio that the mortgage statements in question were not communications in connection with the collection of a debt and therefore not covered by the FDCPA and the FCCPA.”)

Outcomes like that are entirely predictable when all parties agree that the claim of “loan” is true. But that only happens when the homeowner and forensic experts fail to recognize that the money paid at “closing” (if any payment was made at all) was not a loan but instead was a partial payment for launching a virtual loan account without which securitization could not exist.

By lying to homeowners about the true nature of the transaction, the sellers are able to convince homeowners to sign documents, promising to pay back the incentive payment. The addition of interest and fees just adds insult to injury.

Cases under my direction rarely result in a loss for the homeowner. By centering in on what must be obviously true in discovery, in QWRs, in DVLs, the homeowner finds a gold mine of violations of the FDCPA, TILA, FCRA, UDAAP etc.

Subsequent actions by homeowners naming the “Servicer” et al usually result in decisions for the homeowner —- but only after they have won the foreclosure case filed against the homeowner. This case opens the door to such actions even before the homeowner wins the foreclosure case.

The discovery process in such actions is more liberal than what homeowners find in the principal foreclosure action. So bringing the claims for statutory violations could produce enough information to assist in defeating the false foreclosure action.

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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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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 12 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).

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The Fiction of Deceleration Violates Separation of Powers

Posted on May 25, 2022 by Neil Garfield

The State of New York, along with many other states is struggling with problems arising from an array of legal fictions created by the courts to justify claims for administration, collection, and enforcement of virtual debts (instead of actual debts in the real world).

These attempts violate the constitutional separation of powers under the Federal and State constitution. Besides legislating the terms of transactions, state and federal courts are writing a “get out of jail free” pass to every actor who claims to have some right, title, or interest to administer, collect or enforce a debt that turns out to be missing a creditor.

The fact that there is no law permitting such action and that such doctrines violate due process requirements of every state constitution and the federal constitution has not stopped the wholesale legislation from the bench because the Wall Street securities firms were unable to get the laws changed the normal way.

A recent article illustrates the problem and the prior assumptions that are false and wrong in every sense.

https://www.mayerbrown.com/en/perspectives-events/publications/2022/05/the-past-is-the-present-new-york-legislature-passes-retroactive-foreclosure-bill

Exactly how a lender may “de-accelerate” a loan in New York has largely been left to courts to decide.[e.s.] In 2021, the New York Court of Appeals (New York’s highest court) held that a lender’s decision to voluntarily dismiss a foreclosure action constituted a revocation of the lender’s decision to accelerate. In that case, the lender brought a foreclosure action against the borrower within six years of accelerating the borrower’s loan. However, the lender had previously accelerated the loan in 2008 and brought a foreclosure action, which it voluntarily dismissed in 2013. The lender later accelerated the loan for a second time and brought a subsequent foreclosure action in 2015. Thus, had the six-year statute of limitations continued to run from the date of the original acceleration in 2008, the lender’s second foreclosure suit would have been time-barred. The Court of Appeals, however, agreed with the lender that the lender’s voluntary dismissal of the first foreclosure suit constituted a revocation of the lender’s option to accelerate, thus re-setting the statute of limitations to bring a suit on the entire debt. Because the lender’s dismissal of the foreclosure action revoked the earlier acceleration, restoring the parties to where they were prior to acceleration, the court held that the lender only needed to bring the current foreclosure suit within six years of any subsequent acceleration—which the lender had.

Thus without any assertion, announcement, or notice from the parties to the documents that supposedly memorialize the terms of a transaction — requiring full disclosure of the material elements of the transaction — the courts have created a brand new provision about something called “deceleration.”

So if the actors claiming rights to administer, collect or enforce an alleged debt (i.e., a virtual debt) lose and get their foreclosure action dismissed “without prejudice” or they dismiss the foreclosure case on their own, a new term — deceleration — becomes written into the documents and thus subject to “interpretation” by the court.

Let me be clear. Such a proclamation from any court forces both parties to accept terms that were never in the subject documents. The event happens without consent or due process. Yet such “Doctrines” are widely in use around the country.

I have one case where we have a final judgment incorporating findings by the court that the “trust” never proved it had any ownership of the subject alleged debt, that the documents used to prove the foundation for the claim were fabricated and that the actor whose name was used in the foreclosure had failed to prove it had any ownership, possession or right to enforce the promissory note and that possession was only proffered after the commencement of the case.

The declaration of default occurred during the time when there was no evidence of possession of the note. The assertion was that Ocwen was a servicer based solely on a Power of Attorney that was mistakenly fabricated to reflect a signature from Chase Bank, who was not in the case, instead of U.S> Bank who was in the case.

The findings of fact and conclusions of law were incorporated into a Final Judgment that dismissed the foreclosure claim without prejudice because that is what current doctrine holds. The old doctrine of finality that basically said “You had your chance” has been replaced by “Take another whack at it.” In any other type of case, the failure to prove the essential elements of the case would end the case forever regardless of who was “right” or what was “just.”

The quote from the article is that this concept has largely been left to the courts. And then it goes on to discuss other issues. But deceleration is not found in the note or mortgage. And no legislative enactment exists that defines or allows deceleration.

I don’t think that deceleration can be legally incorporated into the transaction documents except as an offer of settlement. Deceleration is an act, not a magical event. Current doctrine allows and even requires courts to hold that even if the act of deceleration did not occur, the court will impose that view on the transaction thus allowing a second bite of a rotten apple.

The Bartram rule in Florida which is somewhat mirrored in NY law creates a fictitious event allowing the foreclosure players to sidestep statutes of limitation. Such an interpretation before securitization would have been laughable. The only thing that changed is the advent of virtual debts instead of real ones. The problem is that while the debts are only virtual the enforcement is very real.

Deceleration is spun out of thin air. It is an unconstitutional grab and violation of the separation of powers. No court has the authority to make new laws. That is strictly a legislative function. The false equivalent would be a legislature passing a law that says John Smith is guilty of some crime or other violation of a statute. That can only happen in the courts and nowhere else.

The problem, like most violations, is how do you challenge it? Constitutional litigation is very expensive. This would be no exception.

On the first level of litigation, the trial courts would feel bound by precedent in which the “new law” (asserted by the Courts) inserts deceleration into the transaction documents.

On the second level the appellate courts would no doubt rule the same way and for the same reasons. This is an example of “we did it and therefore it must be right.” Federal appellate courts might allow for discussion but in the end, they would most likely defer to “state law” which would add insult to injury.

Then you have SCOTUS which has already shown its stripes. Even though they smacked down the lower court objections unanimously, rescission has become an unavailable remedy because the Supreme Court refuses to hear any additional case in which violation of rescission under TILA is the issue. So while Scalia was even sarcastic about the lower courts’ attempt to ignore the law, the Supreme Court is allowing that to continue.

The real problem, in my opinion, is that we continue to be dominated by false labels. The ONLY path left is what I said 15 years ago — a direct attack on the nature of the transaction. But even that is at least partially blocked by the fact that nearly all lawyers who could litigate the issue, believe the transaction was and remains a loan even if there is no lender or successor lender. Once you accept the label of “loan” (asserted or implied) the rest falls like dominoes.

This requires lawyers to attack the transaction without saying they are challenging the label. This leads to confusion in the courts and mixed results at the trial and appellate levels. The CFPB is creeping up on this. Current invitations to propose rule changes, combined with the recent announcement of changes and definitions (particularly as to the definition of a servicer) are moving toward the goal of establishing that there is no unpaid loan account receivable that is being enforced. There is only an expectancy based upon a virtual debt that is not allowed by law.

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Filed under: foreclosure | 1 Comment »

State Enfrocement of Deceptive Consumer Financial Practices Just Became More Likely

Posted on May 24, 2022 by Neil Garfield

Wall Street investment brokerage firms acting as investmetn banks or commerical banks are now jittery about the possibility of 50+ attorneys general taking a hard look at the sale of complex financial products to consumers.

Those firms know that feelings on main street are still raw. An ambitious State AG who seeks higher office might be spurred to action by this latest development.

The wheels of justice grind very slowly and I would agree with the view that in the case of the 2008 crash it was too slow. The CFPB sounded good but it was universally regarded as federal preemption of enforcement of consumer protection laws. That is not what the Dodd-Frank law said, but it was what everyone thought.

The net result was that enforcement practically ground to a halt. All enforcement was concentrated into one new federal agency and all other agencies — state and federal — went about other business.

I had pointed out repeatedly that there was concurrent jurisdiction to enforce all consumer protection laws enumerated in the Dodd-Frank law but Wall Street had too tight a grip on those who had their hands on the levers of power.

So you could file a complaint with the State AG, but regardless of how flagrant the violation of consumer rights, they generally did nothing even with continuous nudging. Now there is a green light that takes down the barriers to other state or federal agencies. The CFPB has essentially invited them to start prosecuting — something that should have been done 15 years ago.

see https://www.consumerfinancialserviceslawmonitor.com/2022/05/cfpb-issues-interpretive-rule-bolstering-enforcement-efforts-by-states/

On May 19, the Consumer Financial Protection Bureau (CFPB or Bureau) issued an interpretive rule, describing states’ authorities to pursue companies and individuals that allegedly violate any of the federal consumer financial laws enforced by the CFPB.

CFPB Director Rohit Chopra described this action as “promoting state enforcement, not suffocating it.” It openly invites states to exercise their authority under Section 1042, “Preservation of Enforcement Powers of States,” of the Consumer Financial Protection Act of 2010 (CFPA) to not only bring lawsuits in federal court for unfair and deceptive acts and practices (UDAAP) violations under the CFPA, but also bring federal actions for any violations of the “enumerated consumer laws” enforced by the CFPB.

PRACTICE HINT: None of this means that the consumer complaint can get action without specifying the violations that have occurred and attaching the proof. Stay away from direct attacks on securitization and focus on the unwillingness of the opposition to answer simple questions about the existence, ownership, and status of the debt. Once you get past the typical defensive positions in which servicer names are used as both shields and swords, it is like the old French Maginot line. There is nothing left for the opposition to litigate.

You should remember always that a payment history report is not evidence of the existence or ownership of the alleged obligation. It is evidence at most of some of the alleged activity of the borrower and the servicer. And that evidence is not admissible unless it was actually the servicer who was interacting with the consumer. If it isn’t a record of the business conducted by the servicer it is not a business record and should be barred by proper and timely objection under the hearsay rule.

But if you don’t make the timely and proper objection it becomes a piece of admissible evidence that is hard to rebut.

The other recent announcement by the CFPB drills in this point. The FINTECH companies operating behind the servicer curtain are the real servicers. So only a representative of the FINTECH company that received or disbursed money could testify or provide the foundation for records of the FINTECH company as a business record — i.e., a record of the business conducted by the FINTECH company acting as “servicer-in-fact.”

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Filed under: foreclosure | 1 Comment »

The investment bank was the casting director and you were the audience.

Posted on May 23, 2022 by Neil Garfield

It is by exposing the virtual nature of the transactions that allows homeowners to win in high numbers. It is by suppressing the truth about the transactions that the Wall Street investment banks and securities brokers make all their money.

In one of my consulting jobs, I am assisting the homeowner — along with local counsel — in understanding the realities of what is called “Securitization.” First, you need to remember that “securitization ” is only a word with very little meaning. In the context of Wall Street, it is supposed to mean that assets are split up or collected and sold in pro-rata pieces to investors.

Wall Street convinced both homeowners and investors that the substance of securitization meant the creation of a loan transaction and then the sale of that loan transaction and the financial expectancy of payment to multiple investors. But the securities brokerage firms never intended any of that.

They had to be convincing or else the plan wouldn’t work. The real plan called for selling the “Loan” over and over again by giving attributes of the transaction different names. So in the end, if they paid $200,000 to or for a homeowner, they would sell it for at least $2.5 million.

What they could never say, under their plan, was that they were selling a virtual loan with no value in lieu of a real loan consisting of a lender or successor paying for an unpaid loan account. It is by exposing the virtual nature of the transactions that allows homeowners to win in high numbers. It is by suppressing the truth about the transactions that the Wall Street investment banks and securities brokers make all their money.

So the question in this project was who is the Plaintiff? That should seem obvious but it isn’t. Interestingly, the suit that was filed against the homeowner does not yet sue for enforcement. That is a head fake, as we shall see. If the homeowner fails to contest the case the legal standing of the plaintiff will have been established as the law of the case and the existence of the loan account will have also been established as the law of the case.

For the uninitiated, the law of the case can loosely be translated as “for purposes of this case x is the truth even if the truth is y.”

So once they sue for foreclosure, the case is virtually over if the homeowner failed to defend.

The case involves U.S. Bank as trustee of a “title trust.”

The opposing lawyers want the wiggle room to pretend the plaintiff is USB or a trust. But USB is the representative — and USB is the only party that could legally claim to act for the trust — if the trust exists. The use of the phrase “title trust” is an experiment to see if that will get you off their backs. It is also being used to deflect legal liability for sanctions and damages.

As to syntax, there is probably nothing wrong with identifying the plaintiff as USB as trustee for the title trust. But the claimant is only the title trust. And the powers of the named trustee are limited to what is in the trust. If the res of the trust consists of bare naked title to something subject to the instructions of a third party principal, there is nothing in the trust.

If something were to happen to the trustee, then state law would require looking to the trust agreement to see if there are any provisions for succession and then, if not, allowing for a petition to reform or restate the trust such that a new trustee could be appointed by the court.

You can think of it in terms of a family trust. If you convey assets to your uncle George to hold in trust for your children, and you specify the manner of administration and distribution of the assets you conveyed, you have created a trust, which has its own separate identity and name. Even if you forget to name it, it will still carry your name as trustor or settlor followed by the word “trust.”

Your uncle George can’t make a claim regarding the administration, collection or enforcement of rights relating to those assets unless he does so on behalf of the trust and the proceeds go to the trust. If he makes the claim with the intention of the proceeds going to a third party he is violating the trust agreement — unless the third parties are named beneficiaries.

In this case, there is nothing of financial value in the presumed trust even on its face. As title trustee, it is the trustee in name only. The actual asset (financial expectancy arising from the claimed debt) is never paid to USB or the trust. That is what they’re hiding.

They are hiding it because several people (entities) get paid revenue from proceeds of payments or sales of property but none of them have a right to receive it. And they did it that way so they could, in substance, sell the same transaction multiple times to multiple investors without ever having to credit an unpaid account receivable —- because an unpaid account receivable does not exist on the books of any person or entity.

In a cynical way, I give this a grade of “pure genius.” The entire success depends upon the homeowners believing the myth. Once they start challenging these cases in numbers the entire scheme collapses. While the frequency of such challenges is increasing, we are a long way off from critical mass. In overwhelming numbers, homeowners believe ( and insist) their transaction is a loan. They feel guilty even questioning the foundation of claims to enforce.

When presented with evidence that the loan account does not exist or a lack of credible evidence that the loan account exists, most homeowners know “in their hearts” that they owe the money. That is bias. And that is the bias you encounter in the courts.

The reality is that the homeowner did receive some money in most instances (not all) or did receive some benefit from the payment of money on behalf of the homeowner. But that money was always viewed by the investment bank as an incentive payment for homeowners to get lured into a securitization scheme without the homeowner getting any compensation. It was never to create a contractual loan which would have limited the sales of the transaction to once, to avoid charges of fraud.

There has never been a securities brokerage firm that would invest their own money in exchange for a net return on investment of 2-3%. And yet somehow starting in 1995, they convinced the public that they could turn that into enough money to boost the profits of every player to levels never seen by the players hired to act out their parts.

The investment bank hired good actors to play the parts one would expect in a loan transaction. That is how they sold this scheme.

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Filed under: foreclosure | 2 Comments »

Homeowners with Courage and Conviction Generally Win Foreclosure Cases

Posted on May 18, 2022 by Neil Garfield

I often receive links to cases that either corroborate what I have been saying or challenge my conclusions. Many of those links are opinions from trial courts, and most of those are from Federal DIstrict judges (mainly because most, but not all, state court judges do not issue opinions justifying their rulings.

Even in best-case scenarios, the opinion of a trial judge is not binding as a precedent on anyone. But reading such decisions does inform us about the assumptions, presumptions, and biases confronted by homeowners.

One such decision comes from Pennsylvania Federal Court. U.S. Bank N.A. v Gerber. U.S. Bank v. Gerber, 380 F. Supp. 3d 429 (M.D. Pa. 2018). Some people like the way that the District Court Judge says that the lawyers who supposedly represent U.S. Bank N.A. are missing the mark. And the decision does raise some interesting points about strategy and tactics for homeowners.

This particular decision says that the argument employed in thousands of cases “misses the mark.” The Judge is referring to the erroneous argument that since homeowners were not a party to the chain of transactions that were supposedly memorialized by assignments of mortgage and endorsements, they (the homeowners) have no standing to challenge them even if they are false.

I agree that this one conclusion by this trial judge is an important rejection of one of the most common “defenses” raised by lawyers for the banks. But it does not create a precedent such that any other court needs to follow it. You can show it to another judge as a persuasive authority but it has no precedential authority — i.e., a requirement that the next judge must follow the reasoning or conclusions of the trial judge who issued it.

I think the larger issue is the elephant in the living room. Reading the case law on foreclosure litigation, one thing has become crystal clear: Despite the APPARENT accuracy of homeowner defenses, such defenses will only be considered relevant to the case if they are worded such that the connection to the prima facie case in foreclosure is perfectly clear.

The problem is that lawyers and pro se homeowners are too scared to unambiguously challenge the existence, ownership, and authority over an allegedly unpaid loan account.

It is perfectly within the scope of good pleading to make a statement and then say that you will prove it during discovery. (Just don’t make a statement about a fact that you have already admitted). It is equally permissible to say that the opposition refuses to supply answers to your discovery demands and that both evidentiary and monetary sanctions should apply.

This is why I keep pressing homeowners to secure the services of competent trial counsel or to find counsel who is responsive to direction from attorneys who win these cases. And it is why I emphasize to homeowners the importance of understanding securitization.

Gerber, without realizing it, saddled up his horse using all the right gear and then rode off bareback on another horse. This is a common failure of lawyers and pro se litigants. For example, it is not enough to say that securitization changed the contract. The judge says quite clearly that this might be true but that the burden of pleading is on the one who makes the statement. So if Gerber had alleged the ways in which the contract was changed with much greater specificity, the judge would have taken the defenses more seriously.

I do think the judge was probably wrong in construing some of the reasons the contract was changed as not specific enough. But with the weight of securitization infrastructure surrounding everything, the only thing that a judge will respond to is that the current claimant has no claim and will not be able to produce evidence corroborating their claim and implied assertions in discovery.

In essence, the homeowner is forced under current judicial doctrine to boldly state that there is neither a contract nor a debt owed by the homeowner to the designated Plaintiff or Beneficiary.

The defense needs to be that the named Plaintiff (U.S. Bank as trustee) is pursuing a false claim, has never collected any money, and has no intention of receiving any proceeds from the forced sale or collection from the homeowner or his/her property.

But both homeowners and their attorneys are afraid to state that because of the possibility that the lawyers for the designated Plaintiff will come up with some actual proof of payment of value in exchange for a valid conveyance of ownership of the underlying obligation, the legal debt, note, and mortgage. Nobody likes to look stupid.

As with all cases, the timid lose even if they are right. What stops homeowners from winning is the fear that the “Banks” will be able to produce an admissible record corroborating the existence, ownership, and authority of U.S. Bank or any other designated claimant. They can’t and if they could they would have done so 20 years ago.

The plain facts support two main points:

(1) the documents upon which the foreclosure mills place reliance are false — i.e., they memorialize transactions that never occurred, meaning that the final designated claimant never came to own the alleged loan account, never suffered any economic loss, and never had a record of ownership of any loan account; and

(2) the investment banks have used their outsized influence to change both pleading and proof requirements in foreclosure litigation, resulting in the courts changing the laws governing such transactions in ways that are inconsistent with the intent and content of laws passed by Congress and the laws of any State legislature.

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Of course that in and of itself is unconstitutional because only legislatures can make laws. And only courts can enforce them.

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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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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 12 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.

Filed under: foreclosure | 3 Comments »

Should I Withhold Payment and Place the Money in Escrow

Posted on May 17, 2022 by Neil Garfield

Wall Street is quietly shifting pieces around on a chess board that the homeowner does not know exists and cannot see. There are several examples of this. A shift from U.S. Bank to U.S. Bank Trust, alleged transfers (without payment) of alleged “accounts” from one named trust to another, the rise of “Legal Title Trustee” instead of just trustee, and the list goes on.

I recently answered a fairly simple question about whether the payments should be withheld until the actual creditor acknowledged with its own officer or employee that it did in fact acquire the subject unpaid loan account. The law requires the actual creditor to sign off on some legally recognizable event. The banks have ignored that requirement and give notice from new entities having no right, title, or justification for doing so.

The answer to the withholding question is that there is split opinion. On the one hand, you don’t want to be paying anyone who is not entitled to receive it. On the other hand, you don’t want to put yourself in a worse position than you have in the current status quo. If you are going to withhold the payments it would be wise to hold them in escrow. Either way, I highly recommend that you have a strategic plan in place before you decide one way or the other.

The way I would do it, is to make the payment(s) to the escrow agent with written instructions to deliver the money to the creditor who owns and paid for the alleged underlying obligation — or a representative or agent authorized by a party who is a creditor as I defined it above. Then I would have the escrow agent send a letter (certified return receipt requested) to all the people that you are sending the QWR and DVL to — in which he or she says that he or she has received the payment and that the agent now wants to pay the creditor as instructed by the homeowner.

[Practice Note: This almost surely misleading to an interpleader lawsuit in court. The escrow agent would say that he doesn’t know what to do with the money and that he doesn’t care who gets it].

In fact, the newest notices being received could be referenced. Conveyance of a mortgage without a concurrent conveyance of the underlying debt is a legal nullity. Enforcement of the security agreement by a party who has not paid value in exchange for receiving ownership (not merely evidence of ownership) of the underlying obligation (see UCC9-203, adopted verbatim as State law).

In reference to the latest notice of transfer, it is not accompanied by a written document transferring ownership of the alleged unpaid loan account from one owner to another. The document needs to be signed by an officer or employee of the company or other business entity that is purportedly making the transfer. Such documents normally contain a warranty of title.

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Prior notices have referenced the owner of an alleged unpaid loan account due from the homeowner as Bank of New York Mellon fka Bank of New York as agent or trustee for JP Morgan Chase Bank, N.A. as Trustee for Certificate Holders of “CWHEQ Revolving Home Equity Loan Trust 2005-D” as claimed successor to U.S. Bank N.A., as Trustee for the LSF9 Master Participation Trust.

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The new notice sent under the letterhead of GS Mortgage-Backed Securities Trust 2022-RPL2 (GSM Trust) appears to assert the third transfer from one trust to another. It is unsigned and provides no guidance as to finding or communicating with anyone at Bank of New York Mellon, JP Morgan Chase Bank, N.A.,“CWHEQ Revolving Home Equity Loan Trust 2005-D”, U.S. Bank N.A., U.S. Bank Trust N.A or the LSF9 Master Participation Trust. The “GS” refers to Goldman Sachs, which is almost certainly the party with contractual control over all activities relating to the Peterson loan — even though it has no ownership interest in any payment, demand for payment, underlying obligation, legal debt, note or mortgage (deed of trust).

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The escrow agent would go on to say that having received the foregoing notice, the homeowner is in an untenable position. Having received notice of the transfer it is obvious that efforts will be made to administer, collect or enforce payments that are now claimed to be owed to GS Mortgage-Backed Securities Trust 2022-RPL2 (GSM Trust).

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But the notice contains ambiguous language. It asserts that the subject alleged unpaid loan account has been “sold, assigned or transferred.” But the absence of any reference to a prior “owner” or creditor leaves the homeowner in doubt as to the existence, status, and ownership of the alleged unpaid loan account.

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The notice does not assert the name of the seller (if sold), nor an attachment of a formal assignment recorded in county records. In addition, the language leaves the homeowner in doubt as to whether the Notice itself is intended to be an assignment, in which case it is missing an assignor.

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“As the escrow agent for the homeowner, I request that you produce a copy of the genuine instrument in which some person or entity has conveyed ownership of an unpaid obligation due from the homeowner to U.S. Bank Trust, N.A., as trustee for the GSM Trust.”

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“Upon receipt of such instrument, signed by authorized persons in the employ of U.S. Bank Trust, N.A. and the grantor of any instrument(s) transferring ownership of the security instrument and the underlying obligation, I am authorized to deliver payment.”

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The obvious question here is whether you want to add the above narrative to the QWR and DVL or do you want these questions to come from perhaps a real estate attorney who is demanding current answers to current questions.

One of the subtle changes they are attempting to make is from U.S. Bank to U.S. Bank Trust, which would be an entirely separate entity from U.S. Bank. I have no doubt that the legal department at U.S. Bank insisted on those changes. They are well aware that securitization infrastructures might blow up or collapse and that there might be liability attached to renting their name out to third parties to imply the existence of a trust owning a loan that is managed by the trustee. By switching the name of the trustee from the bank itself to a business entity that has little or no assets, they are engaged in asset protection strategies.

This means that U.S. Bank has reviewed the questions raised by the analysis contained in forensic reports or other documents and concluded that there is a current risk that U.S. Bank could be the target of a substantial class action or government agency enforcement.

The question is whether you want to include a revised narrative in your QWR had DVL or you want an escrow agent to raise the current issues with U.S. Bank Trust without going backward in time to when the securitization infrastructure was first created under the LSF9 Trust with U.S. Bank as trustee.

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Filed under: foreclosure | 3 Comments »

How to Defeat False Claims and Documents in Court

Posted on May 16, 2022 by Neil Garfield

The simple fact in almost every single foreclosure today is that the entity named as the claimant has absolutely no interest in the success or failure of the litigation. But they are addicted to the revenue that is generated from the permissive use of the claimant’s name.

So the way lawyers work around this basic fatal defect is by creating a false paper trail such that the examiner (or trier of fact) is lulled into believing that the ball exists at least under one of the fast-moving cups.

In plain language, for the past 20+ years, the foreclosure marketplace has been dominated by false claims of nonexistent losses derived from unauthorized declarations of default. When the case finally gets to court, the facial validity of documents makes it appear that there are no gaps, let alone fatal ones.

A case in point is the Lehman Brothers-Aurora Loan Service gambit. As the investment bank bookrunner. Lehman was sponsoring multiple entities to sell highly complex, sophisticated financial products masquerading as “loans.”

The actual structure of the deal required continued control by Lehman, even though it neither acquired nor retained any rights, powers or legally recognized interest in homeowner transactions.

The goal was to escape any regulation under lending, servicing, or securities laws.

The first step in fake paperwork was the appointment of Aurora as the “loan servicer”. The appointment is fatally efficient because it was not granted by a grantor who had any authority to do so. And THAT is the pattern that is replicated for all paperwork, assignments, and endorsement after that point in time.

So when Lehman crashed and burned, nothing happened. No loan account was established anywhere other than a payment history generated by FINTECH companies who secretly operated under the name of a company that was designated and named as a servicer even though the company never received, processed, accounted for, or distributed any money for or on behalf of creditors.

The lawyers would then march into court with a printout of a report that was proffered as a “business record” even though the payment history report was NOT a record of any business conducted by the named, designated “servicer.”

.This gambit enabled the lawyers to establish the existence, status, and ownership of the debt and to “corroborate” a default — which by definition means that someone has suffered some financial injury arising from the behavior of some promisor or maker of a promissory note.

Through scripted argument and audacity the lawyers play into the bias of a judge by establishing that such an injury was sustained, the named claimant has suffered the injury and that declaration of default required under statutes was perfectly accurate, just, and legal.

As to ownership of the promise to pay, lawyers skate over that simply through the creation of false fabricated documents in furtherance of a scheme to gain illicit profits and revenues. They work backward and once the name of a Plaintiff or Beneficiary is selected they created fake documents that raise legal presumptions that the named company actually owns the obligation (loan account).

But as dozens of good trial lawyers have found, the legal presumption arising from the apparent facial validity of the fake documents utterly fails when challenged. The problem is that it is not challenged enough.

So thousands of homeowners have either achieved clear title or otherwise settled on highly favorable terms but they only represent a speck on the map of millions of homes and hundreds of communities that were completely destroyed by the illegal prosecution of foreclosures.

Recently a client asked a series of questions about the Lehman-Aurora fiasco. Here is what I wrote:

You wrote “how NationStar has walked into court holding a promissory note signed in blank by Aurora who was denied foreclosure..” They didn’t possess the note and they had not received the grant of authority to possess or enforce the note. The lawyers, supposedly speaking for a third party claimant merely said they were a holder which IMPLIES but does not assert physical possession of the note.

You wrote ” We argue that Aurora can’t transfer something they don’t have. If a previous judge already determined that Aurora failed to prove to be a holder with the right to foreclose, then how can Aurora transfer that same note to Nationstar and bestow enforcement rights it was previously denied ?.” They can’t. The written conveyance of ownership of a mortgage without transferring the underlying obligation is a legal nullity in all U.S. jurisdictions. As for the holding of the previous judge, the question is what was the exact ruling? If the judge found that Aurora did not have possession and said as much in a court order, that ends it. The matter has already been litigated and is barred by res judicata from renewing such litigation.

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The attorneys will often try anyway and in the absence of a direct response seeking dismissal or judgment based upon res judicata, those lawyers will and do succeed.

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You have also correctly identified yet another problem for your opposition. You need to realize that foreclosure is strictly a numbers game for the lawyers pursuing foreclosure. Since the money or property obtained from a successful foreclosure is not going to a creditor the entire procedure is all about revenue and profit.

You can argue this point when you get to the point where the opposition has steadfastly stonewalled your questions directed at confirming the existence, status, and ownership of the alleged “loan.”

So with footprints in the sand created by a QWR, DVL, and complaints to the CFPB and State AG, plus a refusal to answer those questions in discovery (perhaps in your lawsuit seeking declaratory, injunctive, and supplemental relief based on violation of RESPA, FDCPA, and FCRA, you may then freely argue that there is no loan account nor could there be any authority to administer, collect or enforce it.

In response to whatever argument opposing counsel wishes to make, counsel should not be permitted to argue it.

An objection should be raised to the effect that since they refuse to answer any direct questions about the existence, status, and ownership of the alleged loan, counsel should not be permitted to argue a position that violates statutory law, violates the rules of court, and violates court orders commanding the direct response to those questions.

If you don’t object to such arguments at that point in the process of litigation you might be waiving that objection.

This is one of many reasons why I continually say homeowners should have a lawyer familiar with courtroom procedures and antics. In order to be heard, objections must be both proper AND TIMELY.

This means that while opposing counsel is making an argument you interrupt the argument and object and firmly state your grounds and perhaps add some ad hoc comments about how opposing counsel is pretending all those violations did not exist, even if in the face of prior orders for sanctions (if you were able to get the judge to impose such sanctions).

You wrote: “The DOT follows the note so I’m not sure how the promissory holder status gybes with DOT transfers.”

The simple answer is that the law, as it has been written and accepted for centuries (even predating the establishment of the United States of America), makes enforcement of a security instrument (i.e., a foreclosure proceeding) impossible without the claimant having paid value for the alleged underlying obligation.

Although this is somewhat different from the right to enforce a note, it is not as far different as it might appear. In order to enforce a note (i.e., get a judgment for money damages) the enforcer must be (a) in possession or have a right to possession (granted by an existing “holder”) AND (b) the enforcer must have received the grant of authority to enforce (granted by a holder as defined by statute) or the actual creditor who owns the underlying obligation.

People forget the latter issue and focus on just possession. But the FEDEX delivery guy has no right to enforce even a bearer note even if his naked possession raises legal presumptions of his claimed status as “holder” which might get him past a motion to dismiss.

The problem with this position is that recent changes in common law look upon the transfer of the note as a transfer of ownership of the underlying obligation — a position that is not supported by any facts but is now almost universally applied. You must rebut such a presumption not just by saying it is wrong, but by asking for corroboration of the transfer of the underlying debt and THEN arguing that the presumption has been rebutted when the opposition refuses to answer simple questions regarding the existence, status, and ownership of the alleged “loan account.”

You wrote: “The judge stopped us before finishing saying that he had heard enough to make a ruling.” Most homeowners, as ignorant litigants, do not realize that when they use the same language as their opposition to describe a contested transaction, they are admitting to the basic elements of the foreclosure case. There is no reason for the judge to continue although the better practice would be for the judge to specifically ask if you meant to concede those points.”

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Filed under: foreclosure | Tagged: Lehman Brothers-Aurora Loan Service gambit. | 1 Comment »

A Promissory Note is NOT a debt. It is evidence of the debt and terms of repayment.

Posted on May 11, 2022 by Neil Garfield

I can remember back when Nova Law Center was an old building on what had been a World War II airstrip. My fellow students and I would satisfy our need for speed on those runways. That was in 1974.

I also remember my contracts professor, Samuel Bader (RIP). He pounded into our heads a simple but elusive fact of law. The note is not the debt. it is evidence of a debt. And he said that those who can remember and use this fact of law would do very well and those who couldn’t remember it or know how to use it would be condemned to the dustbins of historical law practice.

Securities brokerage companies marching under the flag of an “Investment Bank” understood this fact of law. The entire securitization scheme was based upon their knowledge of this fact and their knowledge that practically nobody makes that distinction when arguing a case.

Here is why it is important.

Anyone who can prove they gave money, property or services to another person can clearly claim that they must be paid, even if the amount to be paid was not clear at the time of the origination of the transaction. That is the debt. It exists even if there is no written instrument. It is enforceable without a written instrument. If you have a witness to the transaction all the better but you can show up as the sole witness to describe what happened and why the other person owes you money — without a single document.

The execution of a promissory note is evidence of a debt and the terms of repayment. But it is virtually worthless if the execution of the note is not merged with an underlying obligation as described above. Otherwise, there would be two liabilities arising from one transaction. A note without an underlying obligation is worthless.

Under modern law possession of the note PLUS a grant of authority to enforce it FROM the owner of the underlying obligation (i.e., the person to whom the money is legally owed) raises the status of a possessor (e.g. package delivery service) to a holder entitled to sue for recovery using the note as evidence of how the damages should be calculated and used in the final judgment in your favor.

THAT final judgment entitled you to a right of execution upon any property that is not protected by things like homestead laws. It does not entitle you to enforce a separate contract (mortgage) that says if you don’t pay the debt, your house can be sold at auction.

Nobody in any U.S. jurisdiction has the legal right to seek a foreclosure judgment or to use the power of sale in nonjudicial foreclosure UNLESS they have purchased the underlying obligation for value. This is how thousands of homeowners have escaped the gallows — by hammering on their right to seek evidence corroborating the fact recited in an assignment of mortgage that someone paid $10 and other valuable consideration.

This issue has become confused for many judges and lawyers. The mortgage or deed of trust will often state that the pledge of collateral contained within the mortgage instrument is meant to guarantee payments scheduled under the terms of the promissory note. Such provisions are in conflict with the laws of every U.S. jurisdiction. each of whom has adopted verbatim UCC 9-203.

It is true that you can introduce the promissory note as evidence of the debt and the schedule of required payments. But violation of the note provisions does not entitle anyone to pursue foreclosure without buying the underlying debt.

Many trial courts and appellate courts have latched onto the view that the possessor of the note is entitled to foreclose. That is clearly wrong and has been wrong for centuries. We allow for some liberality for people who want to get a judgment based upon the note alone, although ultimately at trial if there is no underlying obligation and no original transaction then there was no consideration. Such notes are subject to various defenses. While the actor seeking to enforce the note might get past a motion to dismiss they will most often lose at trial.

It is equally important that the reader take note of how the misapplication of the laws contorts reality and liability. Each maker of a promissory note is taking the risk that someone might actually pay for ownership of it and any underlying obligation. But no underlying obligation is conveyed if the grantor did not own it.

Such a purchaser under modern law is virtually immune from any normal defenses except fraud and such. The purchaser under that scenario is called a “holder in due course,” meaning they paid for it, without knowledge of the maker’s defenses and that they made the purchase in good faith.

The contortion of the rules surrounding enforcement of debts that use notes as evidence is further complicated by the misapplication of the laws governing holders in due course.

For good reason, no entity seeking foreclosure will claim to be a holder in due course. The reason is that they didn’t pay for it (violating 9-203), and/or they did not purchase it in good faith without knowledge of the maker’s defenses. If they alleged that they were holders in due course then they would add to the list of prima facie elements of this case — namely that they really and truly did pay for the assignment of the mortgage along with the underlying obligation.

So the current actors playing at foreclosure merely allege holder status (which is not true) and they expect to be treated as holders in due course. Unfortunately, the courts often oblige. But the failure of the judge to stop such antics is mostly based upon the weaponization of the judicial system, requiring the judge to accept the allegations as true and not to litigate or judge any issue that is not contested.

Even if the judge thinks there is doubt as to the status of the holder in due course or even just a holder, the judge is not allowed to turn the case around by raising objections that should have been raised by the affected party.

By conceding facts that are not in evidence, the maker is doomed to pay off at least one liability to a party that has no right to receive it.

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Filed under: foreclosure | 1 Comment »

How Appellate Courts Get it Wrong

Posted on May 10, 2022 by Neil Garfield

The main reason that Appellate Courts get it wrong when a homeowner appeals a decision is that the homeowner admits the basic legally required components (elements) of a foreclosure action. In arguing the point the typical homeowner fails to address the issue of whether the loan still existed, whether the obligation was unpaid, and who has the “loan” on their books and records. In addition, this is probably a carryover from the labels that were used at trial — loan, lender, and servicer.

Lawyers are all wordsmiths, some better than others. Good lawyers spot the hairs that need to be split. Great lawyers are those who know how to split the hairs in a persuasive way.

This is the case in point. I will take you through the analysis.

Mr. Smith borrowed $934,500 from Washington Mutual bank. The problem here is that this could be true. The great likelihood is that it is false. WMB was a commercial bank taking deposits and making loans. It had the capital and credit to make loans. It is the date that tells the story. By 2005 WMB was acting strictly as an originator — i.e., a seller of financial products described inaccurately as loans and withholding the description of the transaction as the launch point for selling securities to investors.

NY State and other states tried to criminalize behavior that causes false documents to be presented or recorded. It was never passed into law. Had it become law, the designated claimants would have vanished leaving the originator hanging naked in the wind without any claim to ownership of the underlying obligation and therefore no claim to administer, collect or enforce.

This was a refinance. Like the issue above, it could be true if the prior transaction was in fact a loan. This is where the definition becomes relevant.

So the only way of revealing the truth behind this statement is to ask about events and documents that would exist and transactions that did transpire if the prior transaction was a loan.
For example (1) at the completion of the transaction cycle (if there ever was one) did an unpaid loan account exist on the books of any person or company? (2) is that “owner” the claimant? (3) has anyone entered data in their books and records demonstrating a financial loss caused by non-receipt of a scheduled payment (if not the declaration of default is a legal nullity) (4) can the current parties show evidence that corroborates the presumption that the promise to pay was sold in a transaction in which the promise was paid for in legal value?
And finally, did any money or value exchange hands on the “refinance” other than money conveyed to the homeowner (if any). Generally speaking, most transactions that were labeled “Refinance” were nothing of the sort. It was simply a new opportunity to get signatures on documents that were merged into more securities sold based on the premise that the certificates represented some attributes of the name unpaid obligation. But that leads to the word “Obligation.” Does it exist if nobody is reporting it as an asset on their books and records?

Assignment from the FDIC: No such assignment was ever executed or even intended by the FDIC to be executed.

At no time did the FDIC assert ownership over any WMB loan.
At no time did the FDIC have any equitable or legal interest in any WMB loan
At no time after origination did WMB own any “loan.”

Chase fabricated an assignment once it was obvious that it had not become the owner of all the promises made by all the WMB homeowners. Without an assignment of mortgage, no such claim could be asserted. Chase fabricated an assignment from the FDIC and then signed as an agent or attorney in fact for the FDIC. Besides the fact that the FDIC cannot delegate such rights to a private company, it simply never happened. It was a forged robosigned document. Allowing Chase to claim ownership and therefore the right to administer, collect and enforce the homeowners’ promises was a trillion-dollar gift from our government to one of the worst players in the marketplace.

Smith obtained a loan modification from WMB. Any document WMB executed, or which was executed allegedly on behalf of WMB after origination was a legal nullity. This is because the transaction with the homeowner was funded entirely by funds borrowed by JPM Chase or Morgan Stanly from Credit Suisse.

But Chase was not named as the lender, even though it funded the transaction, albeit from borrowed funds.
And WMB was named the lender even though it did not fund the transaction.
At the conclusion of the transaction cycle, nobody was left holding the proverbial bag — liability, and vulnerability as a lender, successor lender, or servicer. The loan account vanished into thin air making it nearly impossible to prosecute anyone for criminal behavior or for civil liability. The “modification” was actually an attempt to change the name of the lender without actually publicizing it. Most importantly since the certificates were not regulated securities and they had escaped being labeled as a lender, there was no statutory duty of disclosure — or at least so they thought.

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Filed under: foreclosure | Leave a comment »

If the house is sold, is there anything I can do?

Posted on May 9, 2022 by Neil Garfield

At least 40% of the inquiries received by my office ask what they can do after the auction has occurred or even after the REO property has been liquidated.

As I have stated repeatedly in the past, the further you go procedurally the less likely you are to obtain any relief. If you want any of this reality to change, you need to elect representatives to Congress and state legislatures who truly intend to block efforts seeking to enforce a virtual loan account instead of a real one. One simple change could be a grant of agency power and a requirement that it be used to establish the existence, status and ownership of the loan account upon which the enforcers are relying.

So in response to one such inquiry (our registration form), here is what I wrote:

You have presented a multitude of issues. Unfortunately, most of the issues that you are presenting will never be litigated to a conclusion. You need to narrow the issues that you want to present in order to obtain a remedy. That means an analysis of your documents, both recorded and unrecorded (correspondence etc). After that is compiled, you need to narrow the allegations you want to make, and then perform legal research to see which causes of action might be barred by the statute of limitations or res judicata (the thing has already been litigated).

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You are no doubt aware that once a court action is concluded with findings of facts and final judgment, it is cloaked with the presumption of validity even if it is wrong. In short, you have an uphill battle ahead of you requiring considerable time, money and effort.

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I will confirm that the parties involved in the fake chain of events and documents are all vehicles for laundering titles and claims. I am confirming without any analysis beyond a quick review of your registration statement that fraud was involved and that you never should have lost —- if the law had been properly applied.

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You will also need an attorney who can provide you with an opinion on the impact of any statute of limitations. If you want any relief at all don’t depend upon any federal or state agency to get it for you. You need to file a lawsuit as quickly as possible because time limits are always running.

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As for narrowing the causes of action likely to survive a motion to dismiss or a motion for summary judgment, there are some simple rules that generally are helpful although you would need to confirm with a lawyer who is licensed in the jurisdiction in which your property is located.

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Adding parties to your lawsuit will make the res judicata argument much weaker, which is what you want.

The rules of procedure require a short plain statement upon which relief could be granted. But the reality is that unless you allege the entirety of your narrative with specificity as to dates, times, and parties involved, it is almost certain that your lawsuit will be dismissed.

Don’t sue the judge, the courts or the state. Besides the fact that you will probably lose, the inclusion of such allegations will be received as the ravings of a conspiracy theorist. This maxim is true even if you are dead right about what happened.

Don’t allege anything that you cannot prove with clear and convincing evidence.

Don’t allege fraud. It is far more complex to plead and prove and it raises the burden of proof technically to clear and convincing but in reality, the burden is raised to beyond a reasonable doubt.

You can allege misrepresentation, negligence, gross negligence, breach of statutory duties, disgorgement, and breach of common law duties.

Argue with the judge not against him or her.

Burden of proof and burden of persuasion are tricky items. That is why you should have an experienced trial attorney. You need to accept the fact that you will never prove that the opposition were crooks and fraudsters.

But, if you make the correct allegations, you can set up the opposition for sanctions after you serve reasonable and timely demands for discovery relating to the existence, status, and ownership of the alleged underlying obligation.

STRATEGIES AND TACTICS:

Never start with the assumption that your transaction was a loan or still might be.

Never refer to the transaction as a loan.

Never refer to anyone as a lender or successor lender.

Never refer to anyone as the servicer.

In discovery ask questions that would be axiomatically true if there was an unpaid loan account on the books of the identified claimant.

Never refer to any bank entity as a trustee.

In most cases all such labels are false.

When the opposing parties fail or refuse to provide a direct answer to a direct question, motion practice begins, leading up to sanctions against them. Your goal in such circumstances is evidentiary sanctions preventing them from introducing any evidence of the existence, status, or ownership of the alleged underlying obligation.

Simply stated if they don’t provide such proof in discovery — which they never do — they can’t surprise you at trial with such proof. With evidentiary sanctions, you can also get an order stating that the opposition may not rely on legal presumptions arising from alleged facially valid documents.

If you want our help, given the procedural status of your case you need to start with the PDR PREMIUM.

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Filed under: foreclosure | 1 Comment »

How do I get a lawyer to defend unlawful foreclosure?

Posted on May 5, 2022 by Neil Garfield

The biggest challenge that homeowners face is securing the services of a lawyer who really acts like a defense lawyer — i.e., he or she seeks to win the case regardless of whether they think the client has committed a breach of contract or violation of law. These lawyers consistently win at least 65% of their cases even though they understand nothing about investment banking or current lending practices.

They want to know whether the opposition can corroborate their assertions and allegations. The lawyers test those assertions and allegations.

When they see that the opposition fails or refuses to comply with those requests they pounce without regard to the “moral outcome” of the case.

Their job is to win and any lawyer who practices basic defense strategies attacking the prima facie case of the opposition can win — even if they don’t completely understand why they are winning.

Homeowners who were successful in engaging a lawyer whose goal was to win have been successful at winning or settling their case on very favorable terms. The trick is getting a lawyer who has no preconceived notions about the foreclosure “marketplace.”

Like everyone else, they will start with the thought that there must be something supporting the claim.

What you need is a lawyer who is experienced and hopefully gifted at employing defensive strategies and tactics. It appears that most of those lawyers are in law firms that are governed by senior lawyers who see representing homeowners as a losing proposition.

They assume the claim is valid even if it is imperfect. They assume they will lose and they further assume that the homeowner is incapable of paying the fees for all the work that must be done to successfully defend a lawsuit or claim.

So how do you get a lawyer? You start off by seeking a lawyer who has a general trial practice. They are usually found in the area of personal injury, where that is only part of their practice. These lawyers have no potential conflict with the investment banks.

Then you must present yourself as a financially responsible individual who is able to pay the fees required. This starts with your insistence that you pay the fee for the initial consultation.

And here I have a suggestion to entice the lawyer to engage with this case. Offer a bonus on top of the normal billing if the case is resolved in favor of the homeowner.

The biggest mistake that homeowners make is that they try to get a lawyer “on the cheap.”

That results in failure to conduct an aggressive motion practice and failure to conduct investigations and discovery. Each hearing takes time including preparation and often travel time.

Homeowners who are trying to keep costs down will try to strike a deal with lawyers such that there will be no payment for this work. They are doomed to ultimate failure because the necessary work doesn’t get done.

Then you must present an executive summary of “why we can and should win this case.”

In the lawyer’s mind, his/her initial impression is going to be that there will be a witness who is the custodian of the records of the “lender”.

This imaginary witness will present an exhibit that is a certified copy of the loan account, including all debits and credits.

The witness will be able to show and testify using the exhibit that a default occurred and that the “lender” or “successor lender” has suffered an economic loss caused by the homeowner withholding or failing to pay a promised installment.

That picture is in the mind of the lawyer. It presents the picture of a futile effort to help a deadbeat homeowner escape the contractual promises made at the closing of a “loan.”

The executive summary must address the various components of that picture. It should state that no such witness will appear and that the loan account will not be presented.

By definition, the loan account is the compilation of data retrieved from the general ledger of the successor lender if there is one. It tracks the money trail.

Instead, a witness will appear who is not employed by the successor lender and who will produce a “Payment History” in lieu of the loan account.

Since the “Payment History” presents only data that relates to the activity of the homeowner and does not show the beginning and ending balance, it is not possible to compute the current balance due or whether the “lender” has debited or credited the account for other reasons.

The ending balance shown on the payment history is mere speculation since the witness will not be able to testify that he or she has ever seen the loan account on the books of the named claimant (who doesn’t even know their name was used as a claimant).

And of course the absence of the loan accont altogtehr completely rebuts any presumptionsa rising fromreports of its existence by an outside vendor who, upon digging, will be revealed to be NOT performing any servicing functions relating to the receipt, processing, accounting or disbursement of money to or for a creditor who has paid for the udnerlying allged obligation. Therefore the named “servicer” cannot report on such transctions since they were not party to those transctions.

One of the main points of the executive summary is a brief recounting of the theory and story of securitization. This must be quickly and briefly translated into results on the ground. Securitization only means that securities were issued and sold. it does not mean that any “loan” was sold. In the absence of such a sale, all actions derived from the false memorialization of such a sale are legal nullities and completely void ab initio.

When put to the test, the opposing lawyers will be unable to produce any corroborative evidence that the loan account exists, that the current claimant wons any rights to administer, collect or enforce the presumed obligation. The executive summary directly addresses the prima facie case as I have described it and it says that when challenged, each of the components of the prima facie case will fail because they can be undermined and eliminated.

The executive summary should be prepared by someone who is well acquainted with the false claims of securitization and who knows that no sale actually occurred.

The debt was not purchased or sold. The presumption that it was sold arises from false fabricated and forged documents. The only thing the lawyer needs to do to win is to undermine the presumption arising from the false documentation. Each assignment or endorsement is an implied or stated representation that the sale occurred. The lawyer need only demand that the opposing lawyers produce the evidence of that sale. They can’t.

So the litigation is going to be directed at compelling and sanctioning the opposing lawyer and his “Client” for failure to obey the rules of court and the order of the court that such documents be provided (e.g. proof of purchase by the claimant.)

While there are strategies that could terminate the litigation early, they have not been fully tested. So the homeowner must be prepared for protracted litigation because the opposing lawyer is operating under instructions to make it as hard and long as possible for the homeowner to win. those that persist do win. And the defense lawyer can get paid for his or her time — usually at a rate of $400+ per hour, plus a bonus of perhaps $10,000 or $20,000.
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This isn’t for everyone. If the numbers don’t add up for you then simply don’t start. It is a bad thing that is happening to you but the fact is that the opposition will push the foreclosure through if they can even though it is a false claim. So homes with fair market value below $100,000 might not present a viable litigation objective when compared with $20,000-$40,000 in litigation costs.

On the other hand, for a home worth $250,000+ the prospect of converting all of that into equity makes good sense.

NOTE TO READERS AND FOLLOWERS OF THE NEIL GARFIELD SHOW: I have a mystery medical condition that requires me to take some medication that interferes with my usual clarity of thinking as the day progresses. Something had to give, so I am taking a break from presenting the Neil Garfield Show on blogtalkradio.com. I will probably return in a couple of weeks. In the meanwhile, there are more than 300 podcasts you can listen to that will keep you well-informed. There is no cost or obligation for listening to the NEil garfield Show either live or as a Podcast.

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TRID may be another easy win for Homeowners

Posted on May 5, 2022 by Neil Garfield

since loss mitigation is a statutory condition precedent to foreclosure, there is a failure to comply with the condition that requires loss mitigation exhaustion before pursuing foreclosure, the steamrolling of homeowners is not just wrong, it is also a breach of statutory duty for which the homeowner can seek injunctive relief, damages, and attorney fees.

TILA-RESPA integrated disclosures (TRID) is a series of guidelines that dictate what information mortgage lenders need to provide to borrowers and when they must provide it. TRID rules also regulate what fees lenders can charge and how these fees can change as the mortgage matures.

But it also contains the requirements for review and processing of loss-mitigation applications, resulting in charging excess fees without explanation and failure to credit surplus proceeds from the foreclosure sale.

Once you accept that you might be wrong, then you can move on to whether the forces aligned against you are also wrong. But first, you must discard the errors of your own ideas about the transaction in which you obtained money. It is at that point that several things emerge. And Homeowners are starting to pick fights with “servicers” rather than waiting for them to arrive and others are going back and contesting foreclosure sales for breach of statutory duties.

START HERE:

When you apply for loss mitigation you are tacitly admitting that the address you are sending your application to belongs to parties who are entitled to receive it. This is almost always untrue.
By addressing the application to the designated company whose name is used by FINTECH as a “servicer” you are admitting that they have the power to consider the loss mitigation application. They don’t.
And to put a finer point on it they don’t consider it. Nobody does.
This means that reports back to the homeowner are false. It was not considered because neither the named “servicer” nor FINTECH had any power to consider it nor did they do so.

So if you want to use the TRID strategy, you must first accept their authority, submit the required documents and then sue them for deceit and breach of statutory duty. You might also want to demand the return of everything you submitted since they were not entitled to receive it.

I also think that the Administrative Strategy (QWR+DVL+CFPB complaint+AG Complaint —see links below) is an essential condition precedent for the homeowner to be able to sue. It should be timed such that the homeowner can honestly say that they accepted the representation of authority in good faith and then concluded afterward that no such authority existed.

This opens the door to a simple lawsuit under TRID, which is really a breach of TILA. And since loss mitigation is a statutory condition precedent to foreclosure, there is a failure to comply with the condition that requires loss mitigation exhaustion before pursuing foreclosure, the steamrolling of homeowners is not just wrong, it is also a breach of statutory duty for which the homeowner can seek injunctive relief, damages, and attorney fees.

The basis of the lawsuit is simple.

The homeowner received an invitation to participate in a loss mitigation program from someone who had neither the power nor intention to consider it.
Subsequent reports issued under the letterhead of the designated company that was an alleged servicer were erroneous and false.
No consideration was given to loss mitigation.
The “servicer” possesses no record of seeking or obtaining instructions from any creditor nor any company or person that possesses the authority to act for a creditor who maintains an unpaid loan account due from the homeowner.
Therefore foreclosure should not be allowed or should not have been allowed.

In order to pursue this strategy with gusto, you need to accept the fact that the entire securitization infrastructure might be a ruse. It is. You don’t need to prove that it is a ruse. You only need to kneecap those who rely on that infrastructure to obtain windfall profits.

The only way to defeat you is if they get you to admit that the parties with whom you’re corresponding are legally authorized to represent a real creditor. If you reject that and make them provide corroborating evidence they’ll fail because such evidence does not exist.

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Filed under: CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure mill, forensic investigation, legal standing, MODIFICATION, Motion Practice and Discovery, Presumptions, Servicer, sham transactions | Tagged: TRID | 1 Comment »

Homeowners Alert! You Are Corresponding With Machines, Not People.

Posted on May 4, 2022 by Neil Garfield

Most people do not spend their time keeping up with advances in technology. When it comes to their front door they know it has arrived.

For about 12 years I have been telling people that there is a “high probability” that no human is making any decision and no human is doing anything with respect to their alleged loan account. The only exceptions are (1) a lawyer appearing in court and (2) a robowitness appearing at trial knowing only the content of a prepared script.

When homeowners write to the company that has been named “servicer” of a receivable account due from the homeowner they normally think that someone reads what they wrote. And the response, if any, appears to have been written by somebody.

Recent advances in Artificial Intelligence, particularly with language have now stepped over the line from “highly probable” to complete certainty. Nothing you write to them is read by a human being and nothing written back to you is written by any human being or even approved by the human being. The advantage, when you are running the largest economic scam in human history, is that no person can be accused of doing anything because, in fact, they didn’t.

People ask me questions like “Why are they doing this?” Embedded in the question is a belief that some human intelligence is calling the shots. No, it is all machine-driven. No investigation or assessment is ever made with respect to forbearance, modification, workouts, or anything else. The declaration of default you receive is not a decision made by any human representing any company.

And when you get statements or other pieces of correspondence, and the body of the message is under a letterhead like, for example, Ocwen, that is not the entity who sent it and it is not the entity on whose behalf the message was sent.

To get more information I strongly recommend you read a recent article in the New York Times. Here is the link: https://www.nytimes.com/2022/04/15/magazine/ai-language.html?referringSource=articleShare

Filed under: foreclosure | Leave a comment »

FCRA Might Be Fertile Ground for Individual and Class Actions Especially under CFPB Rules

Posted on May 3, 2022 by Neil Garfield

if the CRC does not perform the investigation or performs it incorrectly, you can sue them.

In a world where the ability to access credit matters more than the ability to access savings, nothing could be more important than these provisions under the Fair Credit Reporting Act (FCRA).

Anyone who read the book or saw the film “The Firm” knows that it is often a boring statute that can take down the worst offenders. It was mail fraud in that story. For more information ask the descendants of Al Capone who died in prison of syphilis after being convicted of income tax evasion. Both bad guys were guilty of murder and mayhem. But what put them away was overbilling clients and evasion of income tax liability and payments respectively.

The Consumer Financial Protection Board is doing a deep dive into both debt collection and reporting under the FCRA (Fair Credit Reporting Act). Apparently, someone woke up to the fact that reporting “agencies” (none of them are governmental) are indeed required to perform both due diligence and an investigation when the “debtor” challenges a negative credit report.

I know. It is boring. But you might get more interested when you consider the importance of these provisions. Or to put a finer point on it, you SHOULD be more interested. Most of the value of your home could end up as equity — i.e., the value you can trade on or borrow.

The investment banks need to make sure that programs like the one I created (AMGAR) never get off the ground. That means making it nearly impossible for any legitimate lender to issue a commitment to refinance the so-called loan with the usual customary standard condition — that it gets the priority position for its lien on the subject property securing the new loan transaction with the homeowner.

This means that the old “lender” or “successor lender” must actually assert and provide confirmation that it is actually the owner of the receivable allegedly due from the homeowner. Up until now, that standard requirement has been ignored and the marketplace has been coercing homeowners to accept title insurance as a substitute for title. Hint: They’re not the same thing.

The way this “policy” has been enforced is to prevent the homeowner from seeking hard money or other lenders. There is no better way than negative credit reporting. A bad credit report blocks almost any source of funds for the usual homeowner. So the inability of the “old creditor” to confirm the existence of the loan account never becomes an issue.

But there is a mechanism by which homeowners can defeat this strategy that supports false claims for administration, collection, and enforcement of claims and payments from homeowners. The mechanism is contained in 15 U.S.C. § 1681i(a)(1)(A).

see cfpb_supervisory-highlights_issue-26_2022-04

Here is the quote from the latest CFPB bulletin. Remember that the fact that it is boring does not mean that it won’t provide you with tangible benefits that could change the whole trajectory of your life.

2.2.1 CRC duty to conduct reasonable reinvestigation of disputed information The FCRA requires that a CRC must conduct a reasonable reinvestigation of disputed information to determine if the disputed information is inaccurate whenever the completeness or accuracy of any item of information contained in a consumer’s file is disputed by the consumer and the consumer notifies the CRC directly, or indirectly through a reseller, of such dispute.8 In several reviews of CRCs, examiners found that CRCs failed to conduct reasonable investigations of disputes in multiple ways. Examiners also found that rather than resolving disputes consistent with the investigation conducted by the furnisher, which in many instances would have required correcting inaccurate derogatory information and replacing it with accurate positive information, CRCs simply deleted thousands of disputed tradelines. Examiners also found that CRCs failed to conduct reasonable dispute investigations when they failed to review and consider all relevant information submitted by the consumer in support of their disputes. After identification of these issues, CRCs were directed to cease violating the FCRA’s dispute investigation requirements. [e.s.]

In practice what this means for consumers of all types who partake of the twisted financial products offered under cover of false labels is that if you submit a contest to the credit reporting company (CRC) with an appropriate summary and exhibits and state the nature of the contest and the reasons for it, the CRC must conduct a deliberate investigation to determine whether or not it is true.

And if the CRC does not perform the investigation or performs it incorrectly, you can sue them.

If the “furnisher” (usually a company that has been designated as a “Servicer”) is unable to establish the accuracy of the report the furnisher must withdraw it or the CRC must take it down. That action alone lends corroboration to the defense narrative in foreclosure.

The allegation can then be made that the putative “servicer” and “Creditor” are unable to corroborate their claims for rights to administer, collect and enforce the alleged underlying obligation — despite being contractually bound to do so (FCRA, and bound by the statutory duty to do so (FCRA, FDCOA, RESPA).

So how boring is it when you consider that the place of “creditor” and the fact of “loan account” has been eliminated by Wall Street investment banking strategies? Do you still feel like paying them anyway? Or would you like to know how they are really making money, regardless of whether you pay or not?

PRACTICE HINT: THIS IS ONE EXAMPLE OF WHY HOMEOWNERS SHOULD OBTAIN A FORENSIC INVESTIGATION REPORT AS SOON AS POSSIBLE. BEING “CURRENT” IS BOTH IRRELEVANT AND POTENTIALLY DAMAGING IF YOU ARE PAYING ON A NON-EXISTING DEBT FOR THE BENEFIT OF A NONEXISTENT CREDITOR.

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Filed under: CORRUPTION, foreclosure defenses, forensic investigation, investment banking, Pleading, Presumptions, prima facie case, Servicer, sham transactions, standing, TRIAL OBJECTIONS, trial strategy | 1 Comment »

“Court Bias” is an Unproductive Rabbit Hole

Posted on May 2, 2022 by Neil Garfield

Practically every email and inquiry I get contains complaints about court bias. It is as though people think that there are humans on this planet who have no opinion or bias. They point out examples of being steamrolled, ignored or otherwise wiped out in foreclosure litigation and they blame the opposing lawyers for being evil (which they might be) and they blame the judge for being biased (which is probably true in most cases).

Here is my answer to all of that: Bias is not a sin. Nor is it insurmountable.

Substantively you are correct. Procedurally you are incorrect. You fail to acknowledge that every case, whether civil pr criminal, starts off with bias. Everyone in the courtroom has it. The Judge, the jury, the bailiff, and even the court reporter.

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There is no case in which humans are involved where there is no bias. To project failure on the basis of bias is like giving up one’s life because of the presence of air. Having bias and even acting upon it is not a crime under the constitution or any statute or common law precedent.

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We have all heard about cases in which an obviously guilty defendant was “acquitted.” And then people all get in an uproar about that and how the system failed to work properly.

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That is because they don’t understand constitutional and statutory law. A verdict of “not guilty” does not mean “innocent.” It means that the prosecution failed to prove their case beyond reasonable doubt — not that the defendant was innocent. That is our legal system.

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How does a defendant get a “not guilty” verdict? The lawyer attacks the predicates for the prima facie case against his client. If the search is bad the case is thrown out because our constitutional right to privacy was violated by law enforcement. that is how we keep them in line. The lawyer does not seek to prove his client is innocent because he need not do that to win. The lawyer must only undermine the factual or legal premise of the case filed against his client.

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So applying this to foreclosure cases, what you may be missing is the fact that homeowners win all the time. And the way they win is by undermining the case filed against the homeowner. They never win by proving that the opposition is composed of all crooks and liars. They win because they timely and properly bring up issues that the judge must decide in a manner in which the court is required to make a decision between the bias of the court and the procedure required to preserve the constitutional integrity of the legal system.

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I don’t deny that there are judges that will rule in favor of bias. But nearly all the examples of judges ruling by bias consist of decisions that I would have made myself if I was sitting on the bench. The judge is there to call balls and strikes and not to pick winners.

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If the homeowner brings up issues long after the appropriate time and place to do it, the homeowner has waived those defensive strategies in most cases. For example, you can’t refer to “the loan” and the “the servicer” and the “account” and then argue that they don’t exist. Here is another common example: objecting to hearsay after a string of 12 questions asked and answered. When the first question calling for a hearsay answer was put to a witness, THAT was the time to object. If not the objection is waived. Case over.

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So the moral of the story is that the criminal defense lawyer does not seek to prove his client is innocent. He or she seeks to undermine the case filed against the defendant. The foreclosure defense lawyer who wins recognized simply that it is not the job of the lawyer to prove that the claim does not exist. It is the job of the foreclosure defense attorney to undermine the ability of the opposition to prove a case against the homeowner.

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Filed under: foreclosure | 2 Comments »

Why the CFPB Announcement is Very Important

Posted on May 2, 2022 by Neil Garfield

when the time comes that a judge enters an order or judgment containing findings of fact, for example, that the records of the designated “servicer” are not business records that are not exempt from the hearsay rule, the poop will hit the fan.

I received multiple emails from lawyers and homeowners who were confused when I posted an article about the latest CFPB announcement. Most people are not clear on why this announcement is so important.

I can say this — the lawyers who represent “industry actors” are sending up flares about this announcement. See the Troutman Pepper Analysis. The end result SHOULD come in two parts:

a restructuring of all homeowners transactions in which the homeowner agrees to accept a virtual creditor instead of a real one, a virtual loan account instead of a real one, and a set of risks that are disclosed to the consumer as required by the Federal and State Statutes governing lending practices.
reasonable compensation to the homeowner for being an “industry actor.”

Obviously, Wall Street hates that idea and will fight against it. For one thing, when all cards are laid upon the table the big banks will have many aggressive competitors offering homeowners greater incentives to sign off on the new deal. For the old ones that are considered “complete”, it will require a forced settlement with the investment banks that has the effect of greatly reducing the alleged debt. Homeowners would be forced to accept the reformation of their “simple” loan transaction.

If you read the announcement closely, you will see that the CFPB has redefined FINTECH. And they are undermining the claims made in the name of companies that are designated or labeled as “servicers.”

They are treading carefully, but it is now abundantly clear to the agency that the companies that most people believe are servicing their accounts are simply being used as fictitious names for third parties.

It will take a while for this to sink in. And there is more that the CFPB can do to reinforce this message. But when the time comes that a judge enters an order or judgment containing findings of fact, for example, that the records of the designated “servicer” are not business records that are not exempt from the hearsay rule, the poop will hit the fan.

Those records are the only thing that the dark side has to establish the existence of an unpaid debt and a creditor. U.S. Bank, N.A. for example does not receive documents or money out of the cash flow created by transactions with homeowners. The allegation, assertion, or claim has always been that it had “constructive possession” because the company that was named as the “servicer” had received the original documents.

White will be revealed and highlighted by the policy announced by the CFPB, is that the named servicer does not receive any money or any documents. Instead, there are fabricated documents from which one might assume or presume that money and documents had flowed to the company that was named as a “Servicer.”

Even if such companies, like Ocwen for example, came into actual possession of an original note (unlikely because notes are routinely destroyed contemporaneously with closing), it would mean nothing because they don’t have the right to enforce. People tend to forget the second part of the lawyers seeking Foreclosure use a variety of tactics to paper over that fatal deficiency.

Wall Street investment banks invented a circuitous route to get around this fatal defect. They use documents that are labeled as “power of attorney” or they use the pooling and servicing agreement.

The named plaintiff or beneficiary in a foreclosure is usually named as a bank not on its own behalf but as trustee of a named trust which may or may not exist. But neither the bank nor the trust maintains any accounting records reflecting ownership of assets consisting of obligations of homeowners.

In plain language, this means that the Foreclosure mill is making allegations, assertions and argument regarding the existence and identity of a creditor owning the alleged obligation of the homeowner, but there is no testimony, exhibit or any evidence that those assertions are true. Pressed further, the inevitable conclusion is that they are not true.

Therefore the appointment of a company that is self-described as a “servicer” is irrelevant to any case in which a party is seeking Foreclosure. In plain language, the agent has no more power than the principal.

The announcement by the CFPB has Biden’s fingerprints all over it. His style is very underplayed and incremental.

You could easily read the announcement as simply the intention to examine the business of companies that are described as FINTECH. The CFPB is saying that they are not simply technology companies.

The CFPB is saying they are servicers — this puts the CFPB in direct conflict with all claims made on behalf of companies who are named as “servicers” but who perform no servicing functions in connection with the receipt, processing and accounting, and distribution of proceeds to any creditor.

When you think about what that might mean and what we already know, the outcome of that investigation and monitoring will be an administrative finding that the real servicer has not been disclosed, and that the companies who are named as servicers have no relevant business records, because they never received any payments nor made any distributions.

There is no possibility that the investigation will not lead to a question about how the FINTECH servicers are working and for whom they are doing this work.

This is a pivotal point. If the real servicers are simply contractual agents of the designated companies who are named as services, it would strengthen the position of the investment banks. But I know that the real servicers (FINTECH) are working for the investment banks, and not the bank named as trustee for a REMIC trust — nor the company named as “servicer.”

This will all lead to the inevitable conclusion that no company is actually performing servicing in the conventional sense. None of them are collecting money from homeowners and then distributing the payments to creditors. That is because of one fatal flaw and the business plan of the Wall Street securities firms. They eliminated the role of “creditor” or “successor lender” but they kept the labels.

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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.
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.
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Filed under: boarding process, burden of pleading, BURDEN OF PROOF, CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, foreclosure, jurisdiction, legal standing, Servicer, sham transactions | Tagged: CFPB | 2 Comments »

How Bias Works Against Justice in Foreclosure Litigation

Posted on April 29, 2022 by Neil Garfield

If one takes a neutral view there is an inescapable and undeniable conclusion: millions of homes have been forced to sale, depriving the owners of property and money, and causing untold damage to families and careers without the court knowing to a reasonable degree of certainty that the loan account even exists.

Scott Staffne and I have been in discussion about court bias. He is advancing the cause in one pending case.

The basic thrust of the argument is that judges have their retirement and their personal investments at stake in every case that questions the reality, integrity, or assumptions arising from a financial innovation (MBS) about which judges know absolutely nothing. In place of knowledge, they use assumptions and presumptions arising from fabricated documents containing false information that are forged by robosigning.

Even the promissory notes are routinely destroyed and then re-created using the miracles of modern technology. Allowance for such actions means that anyone with a computer and printer can fabricate the base documents for any claim. That is the direction of the courts today.

It turns out that in certain states the retirement of judges is funded and guaranteed with taxpayer money so there are at least some judges, theoretically, who have no MBS bias.

So here is what I wrote to Scott regarding this entire mess:

I see what you are saying about the taxpayer guarantee — but knowing as many judges as I do (personally), I wonder how many of them understand that or even think about it. In short, I wonder if they are thinking the way we are saying even though the MBS issue doesn’t affect them — or maybe it does in their personal investments.

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I think it might be a task too large to prove the points I raised. But the reverse is possible and directly in line with what you are asserting in your brief. The neutral point of view would be that there must be a justiciable issue before the court which is universally defined as two or more parties in conflict about legal rights.

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In order for the justiciable issue to be presented in foreclosure cases, there should be a pleading requirement — given all the excesses and abuses that are revealed in settlements with Federal and state AGs — that

(1) requires the complaint to be signed under oath not by a servicer but by an officer of the bank that supposedly is a trustee of an alleged trust that is the plaintiff or beneficiary under a deed of trust,

(2) contains specific language warrantees title to the underlying obligation, legal debt, note, and mortgage,

(3) asserts an economic loss caused by its failure to receive payments from the homeowner that it had otherwise been receiving and

(4) acknowledging a specific servicing agreement, which should be attached, naming the currently named servicer to act and to specify the acts that are both authorized and performed.

*

I also think that a certification from the company that is claimed to be a”servicer” that it received and disbursed money from the homeowner would end all foreclosure litigation. they don’t and their “records are merely an aggregation of data from third parties including unknown third parties.

*

These FINTECH companies, effective yesterday are now being viewed as the real servicers by the CFPB. They are the ones receiving payments and they are the ones recording the receipt. So the Payment history” offered by the fake “servicer” is not a business record in the sense that it is not a record of business done or even managed by the “servicer.” it is inadmissible hearsay. And that means no case.

*

But when homeowners raise any of those issues, usually inartfully, they are swept aside in a manner that is completely inconsistent with the customs and practice of judges thirty years ago — i.e., scrutinizing the document and asking the right questions even if the homeowner did not show up.

*

A neutral judge would allow the homeowner to demand proof that the loan account exists and that the named plaintiff or beneficiary is the owner of it by virtue of having paid value for it. A neutral judge would automatically insist that the named plaintiff or beneficiary appear at least once by testimony or affidavit.

*

A neutral judge keeps the burden of proof squarely on the claimant until the prima facie case is made. A neutral judge would not apply presumptions of fact drawn from documents whose source is a series of companies that admittedly fabricated millions of such documents containing false information — at least not without some corroboration (i.e., proof of payment for the loan account).

*

Instead, the courts have swung the other way. And the use of nonjudicial foreclosure is an extreme example of what happens even in judicial foreclosures. Contrary to constitutional requirements, the homeowner must first produce evidence of a negative the nonexistence of the loan account — without any access to the records, data, and ledgers that would prove that.

*

If one takes a neutral view there is an inescapable and undeniable conclusion: millions of homes have been forced to sale, depriving the owners of property and money, and causing untold damage to families and careers without the court knowing to a reasonable degree of certainty that the loan account even exists.

*

I admit that many homeowners have cooked their own goose by referring to the existence of the loan account and accepting the status of the alleged servicer. But many people did not. And in any event the court should be careful before the property is allowed to be foreclosed.

*

The courts have taken the view that it doesn’t;t matter whether the proceeds of foreclosure are paid to or on behalf of the named plaintiff or beneficiary. what matters only is if the homeowner owes the money. And the homeowner MUST owe the money because they signed loan papers including a promissory note.

*

Thus was borne the court doctrine contrary to the statute and the constitution that says that anyone can enforce a claim as long as someone else doesn’t also make the same claim during the same time period. It doesn’t matter if the claim is valid, meritorious or just a scheme to generate more cash.

*

They have swung that way, only in the niche of foreclosures, because of their fear and bias regarding a financial innovation to raise capital about which the judges know nothing. They assume from the outset that the claim is real. And that is the sole basis for failure to enforce discovery and pleading requirements. Whether conscious or unconscious, judges are rewriting the statutory laws and the state and federal constitutions.

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

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Filed under: foreclosure | 2 Comments »

Interpleader Might Be Useful in Revealing the Absence of Any Unpaid Loan Account

Posted on April 28, 2022 by Neil Garfield

One of my constant comment contributors recently informed me and others that she was trying a new tack. She writes “My attorneys are making a demand that any refi money be placed with the Court and that the judge decides who he wants to pay.”

This is very close to an Interpleader action which is virtually unknown amongst laypeople and many lawyers. In an interpleader action, a party says to the court I have this asset and there are two conflicting claims to get it from me. In its purest form, the Interpleader says that he doesn’t care who gets the asset. In a more advanced form, the interpleader might say that he does have an interest in making sure that the asset goes to A rather than B.

The point of all this is that a homeowner could turn the tables on companies who are masquerading as “servicers” (basically all companies who claim to be servicers). [NOTE: YOUR SERVICER IS A FINTECH COMPANY NOT THE COMPANY THAT IS CLAIMING TO BE A SERVICER).

The homeowner’s contract is NOT with the company claiming to be a servicer. The homeowner’s contract was with an alleged lender and then the successor to the originally named “lender” or pretender lender. This point is almost always missed by both homeowners and their lawyers. It leads the homeowner into a black hole.

In order for a company to become a successor to the “lender”, the new company must pay value for ownership of the underlying obligation, the legal debt, the note, and the mortgage (note that each of those has its own set of rules). In the world of securitization, no such sale ever occurs.

And that is why I have been declaring for 16 years that with respect to homeowner obligations, there is no securitization. No sale=no securitization. And that means there is no succession. No succession means no creditor even if money exchanged hands for reasons other than the purchase of the underlying obligation.

So people are trying shortcuts to quickly end the claim for administration, collection, and enforcement of the promise to make installment payments issued by the homeowner. If it was that easy the entire securitization myth would have exploded 20 years ago.

Attempting to put the refi proceeds into escrow rather than pay the “servicer” can ONLY work if you have a funded lender who conditions payment on the absolute assurance that the new lender will be getting first priority position as mortgagee or beneficiary under a deed of trust.

The typical answer is that there is a title insurance policy to protect against any problems. But the new lender replies that it refuses to fund the deal unless it receives both insurable and actual title free from any possibility of litigation over the issue of the validity or priority over the lien. The new lender position is best expressed in a letter of commitment. This is the AMGAR strategy that I have promoted since 2008. It works but only for people who are willing and able to invest money in the strategy.

If it is a situation in which there is a real new loan from an institutional lender, they will never go along with the plan to highlight these conditions because they are all heavily invested in the securitization illusion. While there is the possibility that a quick surprise suit against the escrow agent could theoretically work contemporaneously with the “closing” it is doubtful that this strategy would work in the real world.

That is a strategy that has been tried in a few iterations and failed.

But it is still possible it could work. It is called Interpleader. But in order for it to work, you need a disinterested third party willing to do it. I think that the disinterested party ought to be a receiver for the asset.

The homeowner pays the receiver the monthly payments along with instructions that say to pay the creditor if there is one and if there is an unpaid loan account.
The receiver asks the current servicer if it is an authorized agent of a creditor (and to please give the name and contact information so the receiver can confirm it) — i.e., someone who owns an unpaid loan account due from the homeowner.
The “servicer” demands payment. The receiver says he. she or it cannot pay until the conditions are met: a creditor with ownership of the loan account. There is substantial law going back centuries that nobody is under an obligation to make payments to a party who is not owed the money.
The “servicer” serves notice of default.
The receiver files an interpleader action that says he/she it is holding money to pay to the creditor, but the original creditor is not in the chain anymore and there is a new party, a self-proclaimed “servicer”, who refuses to provide adequate assurance that it is the authorized agent of a creditor.
The interpleader deposits the money into the court registry and exits. It remains a party until the judges’ order is to pay this one or that one.

Then both sides must plead to show how they are entitled to the money. The homeowner says he/she either wants the money back and he/she wants to terminate the receivership because there is no known creditor and there is no unpaid loan account on the books of any person or entity.

The “servicer” (who is now a party, possibly along with a Bank that is a trustee for an alleged REMIC trust) is stuck with the same script in a different context, where it will most likely fail.

The plus side of this strategy is that it allows for discovery demands but it shifts the focus from whether the homeowner paid anything to whether there is a creditor who is entitled to collect.

WARNING TO ALL HOMEOWNERS: WITH THE HUGE SPIKE IN FORECLOSURES AND EVICTIONS HAS COME THE TORRENT OF SCAMS. DO NOT PAY ANY MONEY UPFRONT TO ANYONE OTHER THAN A LAWYER AND DON’T DO THAT UNLESS YOU KNOW THE LAWYER’S PLAN TO HELP YOU. DO NOT EXECUTE ANY DEEDS OR INSTITUTE ANY LEGAL PROCEEDINGS OR ANY STRATEGY THAT PROMISES AN EARLY END TO THE ISSUES. THE END MAY BE SATISFACTORY IF PERFORMED CORRECTLY BUT IT WON’T BE QUICK.

IF THE PLAN OR STRATEGY COMES FROM SOMEONE WHO IS NOT A LAWYER IT IS PROBABLY EITHER WRONG OR A SCAM.

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

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Filed under: CORRUPTION, discovery, Discovery -Subpoena, evidence, Fabrication of documents, Motions, Pleading, Presumptions, prima facie case, Servicer, sham transactions | Leave a comment »

Living Truth: CFPB Moving Against FINTECH Companies

Posted on April 27, 2022 by Neil Garfield

It’s time to give a thumbs up to the agency that has up till now befuddled homeowners. The absence of regulation of nonbank FINTECH companies has been a giant loophole through which wealth was converted from homeowners to investment banks.

I am pleasantly surprised by an announcement from the CFPB that will start monitoring and investigating these companies like Black Knight, Fiserv and CoreLogic — i.e., the REAL servicers who are involved in the collection of money that nobody is entitled to receive.

Here is part of the CFPB announcement:

WASHINGTON, D.C. – The Consumer Financial Protection Bureau (CFPB) announced that it is invoking a largely unused legal provision to examine nonbank financial companies that pose risks to consumers. The CFPB believes that utilizing this dormant authority will help protect consumers and level the playing field between banks and nonbanks. The CFPB is also seeking public comments on a procedural rule to make this process more transparent.

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the CFPB has authority to use traditional law enforcement to stop companies from engaging in conduct that pose risk to consumers; this can involve adversarial litigation. However, the law also gives the CFPB authority to conduct supervisory examinations to review the books and records of regulated entities. CFPB examiners typically provide a report to entities with problems that need to be addressed, and responsible institutions typically take prompt corrective action.

For decades before the Dodd-Frank Act, only banks and credit unions were subject to federal supervision. But after the 2008 financial crisis in which nonbank companies played a pivotal role, Congress tasked the CFPB with supervising certain nonbanks, in addition to large depository institutions with more than $10 billion in assets, and their service providers. Nonbanks do not have a bank, thrift, or credit union charter; many today operate nationally and brand themselves as “fintechs.”

Filed under: foreclosure | 6 Comments »

When the homeowners loses in the trial court what are the options?

Posted on April 26, 2022 by Neil Garfield

Foreclosure litigation is a very special type of case. Normal rules of limitation and basic requirements of proof have been softened in favor of giving lawyers the opportunity of saying they represent a Bank that is the trustee of a trust. Those lawyers don’t need to assert that the trust owns any underlying obligation owed by the homeowner to the named Bank as trustee. It is all implied. And they never are required to show proof of authority to represent the bank. In fact, they have no contact with the bank.

The virtually unanimous court doctrine in foreclosure cases is that the courts can be used as a shield against liability for illegal conduct. So this creates several different layers of litigation depending upon when the foreclosure defense lawyer picks up the case.

An appeal is always an attractive opportunity for the layperson but lawyers know that (a) the appeal won’t stop the sale of the property unless the court issues a stay and (b) the odds of achieving any result that could be categorized as successful in the appeal of a foreclosure action are about 200:1 at best.

Your next question is like a double-edged sword. On the one hand, the courts have treated the subject of wrongful foreclosure as not maturing until the Foreclosure case is complete. On the other hand, there is court doctrine that presumes the validity of all preceding orders arising from prior litigation — but only if they were favorable to the foreclosure mills.

This comes partly from the doctrine of finality which is an important doctrine from the standpoint of bringing disputes to a close and partly from the mistaken widespread belief that disallowing foreclosures would destroy the sanctity of contracts that courts are sworn to uphold.

So that is why I am always conflicted when guiding people into or out of litigation. Yes, I believe that all these foreclosures are scams and that the opposition would be unable to prove the basic elements of their claim if put to the test. But starting out — particularly when the case ruling is against the homeowner —- is daunting.

Yet I believe that anyone with the resources to attack this scam at the trial level will most likely (3:1 odds) win. The odds get worse after an actual judgment is entered against the homeowner. But they get better when you add newly named parties discovered by forensic investigations. And the odds become very good when you get to the point where you are pressing for orders compelling responses to discovery demands.

I have only seen a few cases in which homeowners were able to do it on their own and those were cases from 10-12 years ago. I’m speaking here in terms of actually getting a judgment or settlement that consists of real value to the homeowner — reducing or eliminating the debt, payment of damages and attorney fees, court costs etc.

The successful cases (i.e., cases in which the homeowner received substantial relief or value) have the following attributes:

They are buried and even scrubbed under both confidentiality (NDA) agreements and court-ordered expunging of the record
The homeowner was represented by aggressive trial counsel who had internalized the belief that the case was winnable.
Discovery demands were made and pursued.
Motion practice was aggressively employed.
The opposition had been shoved into a corner where they had no answer that wouldn’t put them in jail or under administrative procedures removing their charter or license.

So my short answer is that homeowners who start early, perhaps before any foreclosure is initiated, are the ones most likely to get a favorable outcome.

After the case is over and the judgment is against the homeowner, the odds are daunting. But a well-conceived complaint that is specific in its allegations that form the basis of a cause of action upon which relief could be granted is likely to survive a motion to dismiss or demurrer. Once you get past that milestone your chances are vastly improved.

There are some early strategies and tactics that I outlined on my show 2 weeks ago. But it is too early to say if they will be successful. I have started using them and we’ll see what happens.

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Filed under: foreclosure | 2 Comments »

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