Livinglies's Weblog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Filed under: foreclosure | 3 Comments »

The goal of the foreclosure defense strategy is to undermine the ability of the foreclosrue mill to put on a case — not to prove that the allegations are wrong.

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Thursdays LIVE! Click into the WEST COAST Neil Garfield Show

with California consumer rights attorney Charles Marshall

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

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

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

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

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

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

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

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

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

– civil litigation state,

– litigation Fed,

– appellate practice both state and Fed,

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

– bankruptcy practice.

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

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

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

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

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

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

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

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

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

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

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

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

The Wire Process

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

Sending Bank

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

Federal Reserve

•  Reviews Wire
•  Sends to Receiving Bank

Receiving Bank

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

What Your Clients Need to Know

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

What Could Slow Down a Wire

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

How to Track a Wire

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

Wire Fraud Prevention

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

•  Do not open suspicious emails, click on any links or open attachments.
•  Be wary of emails purporting to send new wire instructions or demanding funds several days or even weeks before closing.
•  Make sure to change your usernames and passwords frequently and never use passwords that are easy to guess like password or 123456.
• Do not save wiring instructions on your desktop and send to the client. Land Title always sends the instructions via a secured email.
• Always double-check and verify the phone number contained in the email for the intended recipient of the wire.
•  If in doubt call the title company directly using a known number, such as the number on the title commitment.

Rest assured, Land Title and their in-house IT team have implemented measures to ensure that all sensitive information a client provides is encrypted and protected on secure sites throughout the real estate transaction. Our closing team will also be in continuous communication with all parties involved in the transaction from beginning to end of the closing. Transferring funds via wire can be a safe and secure process, as long as all parties involved maintain communication and use simple security protocols to ensure that the funds arrive safely and on time.

Filed under: foreclosure | 6 Comments »

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

Filed under: foreclosure | 9 Comments »

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

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

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

SEE

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

Please watch my new show on Community Newspapers: This is Constitutional with Bruce Jacobs. Ana Lazara Rodriguez was our very first guest. She talked about her fight against Castro’s corrupt regime 60 years ago and her fight for her home today. https://youtu.be/CPE3mc2qXVY

Please come support Ana’s fraud on the court trial this Wednesday and Thursday at 10:30AM. It’s going to be a David v. Goliath battle. Here is the Zoom information:

Zoom Meeting ID: 99768308659 Zoom Dial In Number: +1 786-635-1003 Zoom Link: https://zoom.us/j/99768308659

Filed under: foreclosure | 10 Comments »

Trust is not a negotiable commodity. And there is nothing in statuory or common law that says otherwise.

*

If a named trustee does not wish to h ave any fiduciary responsiblity to manage the active affirs ofa trust for benefit of teh beneifciaries, the trustee should resign. Or, the trustee can replaced by written agreement of teh trustor and beenficaires or a court order after a lawsuit seeking reformation of the trust is filed.

*

When Bank of AMerica supposedly “sold” or “transferred” the position of trustee to U.S. Bank, the only reason it didn’t matter is that is was trasnferring the right to be named as trustee — not the duties of performing as trustee.

*

Every claim agaisnt any homeowner that relies upon the right of U.S. Bank to act as trustee in such circumstances is therefore false.

• Admit nothing. That includes whether the copy of the note proffered is a copy of the original, whether this is actually a foreclosure procedure (as opposed to abuse of process for profit) etc.
• Challenge early: In non-judicial states this means challenging the notice of substitution of trustee. In judicial states it means challenging the pleadings by motion to dismiss or a motion for more definite statement because they failed to identify the Plaintiff, allege ownership of the debt and allege damages. It could also be a motion to strike the affidavits or certifications. In all cases it requires use of QWR and DVL to set the stage for a separate action for violation of statute.
• Timely and proper service of demands for discovery.
• Timely and proper motions for enforcement of demand for discovery. This means motions to compel, motions for sanctions and motions in limine.
• Timely and proper objections if the matter goes to trial.

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

Filed under: foreclosure | 2 Comments »

HIDDEN EQUITY IN ALL HOMES SUBJECT TO CLAIMS OF SECURITIZATION

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

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

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

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

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

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

That leaves open the question of the amount of compensation to which the homeowner might be entitled. This requires an evidentiary hearing in which the judge hears evidence on what reasonable compensation would be appropriate as payment to the homeowner for starting the highly profitable securities scheme. But I think a reasonable starting point would be whatever the amount was that was paid to or on behalf of the homeowner, leaving no balance due from either side.

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Thursdays LIVE! Click in to the Neil Garfield Show

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

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

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

We’re supposed to have real answers/ solutions to help people, not just information. “

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Filed under: foreclosure | 5 Comments »

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

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

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

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

Filed under: foreclosure | 1 Comment »

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

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

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

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

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

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

To have Article III standing to sue in federal court, plaintiffs must demonstrate, among other things, that they suffered a concrete harm. No concrete harm, no standing. [e.s.] Central to assessing concreteness is whether the asserted harm has a “close relationship” to a harm traditionally recognized as providing a basis for a lawsuit in American courts—such as physical harm, monetary harm, or various intangible harms including (as relevant here) reputational harm. Spokeo, Inc. v. Robins, 578 U. S. 330, 340-341 (2016).

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

The question in this case focuses on the Article III requirement that the plaintiff’s injury in fact be “concrete”—that is, “real, and not abstract.” Spokeo, Inc. v. Robins, 578 U. S. 330, 340 (2016) (internal quotation marks omitted); see Susan B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014); Summers v. Earth Island Institute, 555 U. S. 488, 493 (2009); Lujan, 504 U. S., at 560; Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 220-221 (1974).

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

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

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

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

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

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

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

Filed under: foreclosure | 1 Comment »

Thursdays LIVE! Click into the WEST COAST Neil Garfield Show

with Charles Marshall and Bill Paatalo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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FREE REVIEW: Don’t wait, Act NOW!

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

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Winston Chuchill was fond of saying that we should walk our dog three times per day regardless of whether or not we had a dog. Some readers will remember that pursuant to that sage advice there appeared leashes in the marketplace that were rigid so as to simulate the appearance of walking an invisible dog. The dog though was not invisible. It obviously did not exist.

Filed under: foreclosure | 5 Comments »

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

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

The primary evidence is the case AGAINST the homeowner.

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

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

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

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

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

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

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

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

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

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

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

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

Filed under: foreclosure | 6 Comments »