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MISSION STATEMENT: The mortgage crisis has produced manifest evil and injustice in our society.  It has hollowed out our economy.

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With Autopen technologies, something is missing — a person.

People and lawyers often say that the judge would not listen. That isn’t true. The judge is listening. He or she is just not hearing well founded objections raised in a timely manner. If you don’t put the nickle into the gumball machine, you get nothing. It doesn’t matter that you had a nickle in your pocket.

I see no reason why automated technologies should not be used. They do make things easier, faster, better and less prone to error. But with machines that create a signature, there is a legal problem of great significance. It creates a loophole through which the largest banking institutions in the world are driving 18 wheel trucks filled with cash.

For purposes of information, if you don’t have the original document or a copy of the original document, then you must account for why you don’t have the document and why you should be considered a party to it. That is basic black letter law. See procedures for lost notes etc.

But what we have been seeing is a fabrication passed off as an original — with no explanation or accounting.

Hundreds of thousands of foreclosure cases were originally filed as “lost note” cases because the original notes were destroyed contemporaneously with the “closing” of the transaction with the homeowner. As admitted by the Florida Bankers Association, it was custom and practice to destroy the promissory note even though it was a cash-equivalent document. Crazy at first blush but nonetheless true.

This was actually uncovered very early in the foreclosure mess that started around the year 2000. By 2007 it was very apparent that if you asked for the “loan file” before the foreclosure process began, nobody had it — and in particular, nobody had the original note. But after the foreclosure process begins the note pops up like magic. The reason became clear when the documents claiming to be original notes were signed with a different color ink than the homeowner used.

And we all know that all State attorney generals filed lawsuits against the securitization players for fabricating false documentation for exactly that reason. Apparently for political reasons the problem was never corrected and still remains. The players promised to mend their ways but did no such thing.

So what we are left with is a document that is not signed, as the word “Signature” is intended to convey. It is marked by machine and presented as the original that was signed by the homeowner. That means that the original is either destroyed (most likely) or lost (also likely). And that means that someone else might have the original or that someone else might be entitled to the enforcement of the note. Or it could mean that nobody is entitled to enforce the note because the obligation has been extinguished. It could mean almost anything.

see https://www.youtube.com/watch?v=N5VB8DuZMv8

https://www.youtube.com/watch?v=ZuIyTwFO5tY

And that is why the mechanical reproduction of signed documents is a hearsay declaration presented by the proponent of the evidence unless there is someone who can testify under oath (and subject to penalties of perjury) that they have personal knowledge of the transaction and the way that the original note was lost and why the proponent is entitled to enforce it.

The only reason why machines are used to fabricate documents as “originals” is to avoid the requirement of producing a real live witness with personal knowledge. Before the era of securitization, they had no problem with producing such witnesses. But now they not only avoid it; they also refuse to do it.

Remember that while it is presumed that possession of the original note means that the possessor is a holder with rights to enforce, the possession of mechanical reproduction does not carry such presumptions. The reason is obvious: it isn’t the original. This brings the claimant or plaintiff in a foreclosure case back to the very thing they wish to avoid: proving the existence and ownership of the underlying obligation.

People forget that the right to enforce must ultimately come from the person who has paid value for ownership of the underlying obligation. This is precisely the issue that has been dodged so successfully in foreclosure litigation resulting in foreclosure sales that inure to the benefit of companies that receive money in exchange for services instead of for the purpose of crediting a loan account.

The courts have all assumed and twisted judicial doctrine out of joint to prove their assumption that eventually the sale results in payment to someone who has paid value for the underlying obligation, owns the underlying obligation, and would otherwise suffer a financial loss if they did not get the monetary proceeds from the sale. That simply is not true.

It is the job of the defender to show (1) the basic black letter elements of a foreclosure case are not actually present or (2) that the opposition cannot prove that those elements are present; either one produces a win for homeowners. Homeowners make strategic errors when they attempt to prove that the elements do not exist. They should be concentrating on revealing that their opposition can not prove the elements —even if they did exist. 

DID YOU LIKE THIS ARTICLE?

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

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
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CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
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CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

 

Call to ACTION!: Deadline now! Respond to Survey For Appellate Courts

see https://checkbox.flcourts.org/NonAppellate-Judges-and-Attorneys-Opinion-Survey-2021.aspx

I checked “other”.

Here is what I wrote:

The courts are about to be clogged with foreclosure litigation again. The cause of this is the use of archaic preapproved forms from the Florida Supreme Court. This results in shifting the eventual outcome of the case in favor of the homeowner to the end of litigation based upon criteria that should be examined at the beginning of the case. A fast-track system for interlocutory appeals would result in huge benefits to the judicial economy and fairness. Gaming the system through the use of certifications from parties unauthorized to issue them is just one example out of dozens.

 

“Servicer” reports are not exceptions to the rule against permitting hearsay as evidence

The rule against hearsay does not only impact oral statements—it also applies to written documents, and, unless the proffered evidence falls within one of the multitude of hearsay exceptions or statements that are otherwise categorized as nonhearsay, it is inadmissible in court. One of the most well-known and frequently relied upon exceptions is the “business records exception” found in Federal Rule of Evidence 803(6). Under FRE 803(6), a business record is admissible if “(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.”

In other words, first, the record cannot have been made in preparation for or as part of the litigation, because such records may likely be inherently untrustworthy or biased, and, second, the record’s custodian must attest to this fact.

see https://www.mondaq.com/unitedstates/patent/1076922/fed-circuit-affirms-exclusion-of-source-code-containing-hearsay

In every foreclosure in which “securitization” is stated or lurking in the background, the sole witness at trial and the persons who are tasked with executing affidavits or “certifications” are relaying entirely on written documents. None of them have any personal knowledge of any transaction about which they are testifying.

Those written documents are produced at trial as “business records” mainly because the witness testifies that they are business records. But if they’re not business records and are merely reports produced for the purpose of foreclosure then they must be excluded under the rules governing hearsay evidence. If the proponent of the hearsay wishes to prove the truth of the matters asserted to be true in the reports generated for foreclosure, it must do so in some other way.

The basic mistake by anyone defending a foreclosure is to assume that the witness is employed by a company that handles payments and disbursements. The payments come from homeowners and the disbursements go to the creditor(s). But the moment you demand discovery about the receipt of payments or disbursement of proceeds you get crickets, objections, and double talk arguments from the lawyers who say they represent the named designated claimant or plaintiff (but who in fact have never spoken with anyone at the named designated claimant or plaintiff).

The reason is simple: the company whose name is being used and promoted as “Servicer” does not handle the money in any manner, shape, or form. Why is that important? If they don’t handle the money, then they are not making the data entries about the receipt or disbursement of the money. It is simple logic. How could they memorialize an event in which they did not participate? If they’re producing reports from third parties who did witness the events, then the “servicer” reports are hearsay. The only competent witness is someone who did witness the transactions.

So if the business records exception to the hearsay requires that the data entry be made “at or near the time by—or from information transmitted by—someone with knowledge,” then the witness for the company claiming to be servicer should not be allowed to testify and is any such testimony is subject to a motion to strike if timely made. But they do testify all the time and their “records” (which are really reports of data received from third parties) are most often admitted into evidence, thus sealing the doom of the homeowner.

There are two reasons for this phenomenon. The first is that there is no well-founded and timely objection from the homeowner. The second, more subtle reason is that once you tacitly or expressly admit the company is a service, most of your objections must be overruled. You have waived the essential truth — that the company is not a servicer.

A third reason is that lawyers have successfully argued that the companies claiming to be servicers received the information from “someone with knowledge.” They argue that even if that knowledge came from a third-party company that is not present or represented in court, that the out-of-court declarations of that third party are still an exception to the rule against hearsay. The obvious argument against that theory is that all out-of-court statements are made by people who profess to have knowledge and therefore there would be no hearsay rule barring such statements from evidence.

So if the business records exception to the hearsay requires that the data entry be “kept in the course of a regularly conducted activity of a business, organization, occupation, or calling” the reports of the company that is proclaimed “servicer” do not qualify for exception unless it did in fact operate a business in which payments were in fact collected and then disbursed to the creditor(s). The absence of such activity should be fleshed out in discovery.

Don’t be confused by the fact that the checks were made out in the name of the company claiming to be a servicer. It is perfectly possible for me to ask you to issue checks in my name and send them to a P.O. box that is not owned or operated by me or on my behalf, which are then deposited into accounts that are not owned by me or operated on my behalf and actually the behest of yet another third party (in this case an investment bank). The people or machines that handle such deposits do not work for the claimed “servicer.” Nobody in their right mind would ever entrust trillions of dollars to thinly capitalized entities — and they never did.

The proof of the pudding lies in disbursements. Servicers have no record of disbursements because they never made any disbursements. They never made any disbursements because, as stated above, they never received the money to make any disbursements.

So if the business records exception to the hearsay requires that “making the record was a regular practice of that activity,” the exception fails again. But the issue is clouded by the fact that the activity of the company claiming to be a servicer was to print out reports from third parties. So it was the product of an activity conducted by the company. but it wasn’t THE activity of receiving or disbursing money.

DID YOU LIKE THIS ARTICLE?

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

Click

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

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

Tonight! Chase Follows the Lenin Strategy: Who-Whom, That is the Fundamental Question 3PM PDT 6PM EDT

Thursdays LIVE! Click into the WEST COAST Neil Garfield Show

with Charles Marshall and Bill Paatalo

Or call in at (347) 850-1260, 3 PM PDT, 6pm EDT Thursdays

 

Bill Paatalo joins Host Charles Marshall to discuss an established pattern he has uncovered in Chase litigation of all sorts. Just as Lenin in Soviet Russia days decided political questions based on who the players to benefit were from a given action, whom the victims would be from same action, Chase variously changes their claims of ‘owning’ the debt in securitized mortgages stemming from the WAMU to Chase bankruptcy of 2008, depending on whom they are litigating against. When the other party to their litigation over securitized mortgage loans is a borrower, they claim for these WAMU to Chase loans an ownership interest and role.

When the other party to the litigation is instead an investor and/or an insurance company, involved with the securitized trust at issue, then Chase conveniently disclaims the type of ownership role in which they naturally and derivatively would be liable for defects in the securitized trust at issue.

Then Charles Marshall will do what might be a last call of sorts on the National Foreclosure Moratorium, covering how homeowners can still potentially take advantage of the forebearance options available through the Moratorium. The companion Eviction Moratorium is also slated to end June 30, 2021.

Why knowledge of accounting is important to understand how the apparent debt vanishes in the context of securitization.

The big change occurred when the Wall Street securities firms forced securitization practices over the line. Whereas the purpose of securitization had always been to reduce risk, the investment banks meant to eliminate it. The only way you can eliminate the financial loss from a failed asset is if you don’t own it. That is basic accounting, basic law and common sense.

If you don’t own an asset there is no basis in the law that allows you to claim a loss if the asset is somehow damaged (assuming it even exists). If you have no loss then you have no claim and the court ahs no power to grant you any “relief”.

Why knowledge of accounting is important to understand how the apparent debt vanishes in the context of securitization.

Before 1995, all homeowner transactions were subject to the same accounting rules. Accounting consists of making data entries and issuing accurate reports about those data entries. All laws, regulations, and rules about data entries and reports are based upon compliance with Generally Accepted Accounting Principles and practices (GAAP). And all of GAAP is based on double-entry bookkeeping.

Double entry, a fundamental concept underlying present-day bookkeeping and accounting, states that every financial transaction has equal and opposite effects in at least two different accounts. It is used to satisfy the accounting equation: Assets = Liabilities + Equity. With a double-entry system, credits are offset by debits in a general ledger or T-account. See https://www.investopedia.com/terms/d/double-entry.asp

In legal practices and doctrines, such accounting entries and reports are considered evidence that transactions occurred. And if the entries were made by an employee of the company who personally received shipment or payment, that employee would make data entry of that receipt. The data is then processed through an accounting department that matches that entry with a different data entry showing how or why that shipment or money was received. In the simple example, if someone receives a payment it will be posted as a data entry of cash received. Accounting would post it as an increase (credit) to the cash account and a decrease (debit) of a prior account established with a product that was sold and converted into an account receivable.

Each data entry has a corresponding entry in some other account. If you paid for something, you would show a debit to cash and a credit to inventory for the product received. The outside auditor (or a court) takes all that as evidence of an event in the real world — unless, on examination, it turns out that the product was never received or that the cash was not used for the purchase of the product, such as in embezzlement.

So in a residential loan transaction, the lender keeps an accounting ledger in which all data entries are compiled. When the lender gives a borrower money, the lender debits a cash account and then credits another asset account to take the place of the cash it used to fund the loan. That other account is generically described as a loan account receivable. In general banking practice, a depository loan account is created in the name of the borrower, and the money proceeds from the loan are deposited into the name of the borrower. The borrower, if he or she was a business, would keep an accounting ledger that showed an increase (credit) to the cash account and an increase in accounts payable under the subcategory of loans payable.

So when the lender comes to court asking for foreclosure, it satisfies the prima facie elements of the claim for foreclosure by saying we loaned money to the defendant, we have the records, the defendant paid us until he didn’t, and we are suffering financial loss or injury arising from the defendant’s failure to pay. That would et them past the pleading stage.

Then at trial, the lender would produce its records custodian who would testify that he/she keeps the records for the lender. At the request of the Attorney for the lender, the custodian would provide the foundation testimony to establish that he has personal knowledge of how the books and records are kept, who receives payments, how they record them, and how the data entries are then recorded into the account ledgers of the lender. If the borrower contested whether payments were accurately entered, the lender would be obligated to produce a witness who actually received or supervised the receipt of payments from the borrower.

And so it was — for centuries.

Starting in 1995, the securitization system based upon “derivatives” (which began in 1983). So securities brokerage firms set about buying loan portfolios, initially, which evolved into borrowing to buy loan portfolios of real loans from real lenders. The first such activities were performed in accordance with the theory and intent of securitization of residential debt. Investors bought pro-rata interests in the portfolios which were managed by master servicers who subcontracted the work to subservicers. it was all perfectly legal but the securities brokerage firms were limited in sales to the dollar value of the loans. That in turn limited the commissions and fees to a percentage of the loan portfolios being traded.

Around the year 2000, everything changed. The securities brokerage firms started executing a plan that would give them multiples of the amounts traded as “loans” instead of percentage commissions. As an analogy, imagine a car salesman suddenly finding a way to get $500,000 for every car he/she sold for $40,000. If his/her commission was 5% the earings would increase from $2,000 to $500,000. And even if his scheme was somewhat illegal or extra-legal he would have enough money to pay off everyone around him to shut up, giving them more money than they had ever seen in their lives.

The rules of accounting and the rules of law are the same. If you don’t own an asset you have no financial loss associated with the loss of the asset. And that is because there is no account that gets debited or credited with any payment or disbursement related to the asset. According to GAAP and the law, if there are payments and disbursements, they are not related to an asset if it is not owned by the party who made or received payment.  Without that, the courts are without any authority to hear any dispute relating to the asset. If the party making a claim does not own the asset, it cannot claim a financial injury. And without a present financial injury, there is no claim.

DID YOU LIKE THIS ARTICLE?

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

Click

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

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

 

Securitization Refined For Defense of Foreclosure

Homeowners attempt to “disprove” the presumed facts by raising questions. But the questions are directed to the judge instead of to their predator. The judge has no obligation to answer such questions and in the absence of some procedural reason raised by the homeowner will and must decide in favor of the fraudster because the victim failed to properly defend.

I think that I have not made securitization, as practiced, clear enough. In the context of securitization, there are only two possibilities for a “loan” transaction with a homeowner. One is that the transaction was never a loan and the other is that it ceased being a loan. People get confused by the fact that securitization (i.e., issuance of securities) occurred.

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It’s true. Securities were both issued and sold but that does not mean that the obligations of homeowners were securitized. that would only be true if the securities conveyed an ownership interest in the obligation. They didn’t. None of them did. And that fact is what causes the extinguishment (not reduction) of the risk of loss through the extinguishment of any ownership of any obligation of a homeowner. No loan and no loan portfolio is purchased or sold on or on behalf of Wall Street. That is the point.

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It was never a loan if there was no lender. A lender is not just someone who pays money to the homeowner. It is a legal person who complies with the duties of a lender and who assumes some risk of loss to the extent that the homeowner fails to make payment. Such a party would keep the obligation of the homeowner to make such payment as an asset on its accounting records.
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It stops being a loan when the obligation ceases to exist. Securitization came in two phases: the first was the purchase of existing conventional loans and the second was the origination of transactions that were falsely identified as loans. For the earlier loans that were acquired, the obligation ceased to exist the moment that the homeowner’s obligation was dropped from the accounting records.
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A conventional loan was recorded as an asset on the books of the lender. But when that lender received payment, the customary data entries on the accounting records of the securitization Player(s) never appeared. That is when the transaction ceased being a loan. There can be no loan without a lender and there is no successor lender who is not a creditor of the homeowner. The legal description of the transaction as a loan was no longer applicable.
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Existing law in all U.S. jurisdictions says two things that are relevant to this discussion.
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The first is that there is no legal transfer of ownership of lien without also transferring ownership of the underlying obligation. So paper alone does not make the transfer. There must be a transaction in the real world in which the obligation was purchased and sold for value. Without such a transaction there is no transfer of ownership of the obligation. And without transfer of ownership of the obligation, there is no transfer of the lien in the legal world. This is not philosophy or theory. This is a report of the actual rules we use in our legal system.
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The second is that there is no right to enforce the lien unless value has been paid for the underlying obligation. There are no exceptions to this requirement. There is a higher bar for enforcement of liens than enforcement of notes. Again, no theory, just the facts. And the corollary which nearly everyone forgets is that ultimately even enforcement of the note depends upon the existence of a creditor who has paid for and legally owns the underlying obligation. Even a “holder” may not enforce if they have not received authority to enforce the note. There are also no exceptions to this requirement.
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So when people refer to a loan being sold from one party to another they are presuming facts that are not true. There is no reason to sell an asset that does not exist and there are no accounting entries that would show debits to cash and credits to accounts or loans receivable. The creation, execution, and even recording of paper instruments that state that such a sale occurred are untrue and are obviously meant to produce a misleading impression in the mind of a judge. But if the homeowner explicitly or tacitly admits that such a sale occurred, then that homeowner has just lost the case. If the sale occurred then value was paid and the obligation was transferred.
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Procedure and the rules of pleading, evidence, and argument are where the rubber meets the road. I can fabricate a note and forge your signature. I can also give the note to my friend and tell him to enforce the note. And he can enforce it by filing a lawsuit to collect on the note and even get an enforceable judgment if you fail to respond. That is just the way the system works. That even works if you never find out about the note and my friend manages to convince the judge you cannot be found and publishes the notice instead of serving the summons and complaint.
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The reason for such an absurd result is that our system does not consider it absurd. The allegations in the lawsuit are taken to be true unless there is an answer denying those allegations. It is presumed that someone would not file a lawsuit that is completely unfounded — i.e., no events ever occurred in the real world giving rise to the breach of some duty that caused damages to the Plaintiff. But since around 1996, such lawsuits have regularly and successfully been filed.
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Homeowners, unaware that their obligation has been extinguished by securitization, mostly (96%) do not contest foreclosure in any way. Hence a false claim for a nonexistent legal debt becomes a legal judgment requiring the sale of the property and the proceeds delivered to whoever was guiding or participating in the false claim.
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The second procedural hurdle is that the system looks at documents to see if they’re facially valid, which means that they conform to the style and content of other documents that purport to memorialize some event in the real world. If they’re deemed facially valid then they’re presumed to be valid and true. So in the case of fake documents and false claims, the burden then shifts to the victim of this scheme to eliminate the presumption of validity or to disprove the facts that are now presumed to be true because of the document.
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If the fake documents come from a “credible” source, the legal presumptions are what controls the case until the legal presumptions no longer apply or until the facts are shown by the victim to be untrue. It is here that most laypeople (nonlawyers) fail to utilize the system properly. They attempt to “disprove” the presumed facts by raising questions. But the questions are directed to the judge instead of at their predator. The judge has no obligation to answer such questions and in the absence of some procedural reason raised by the homeowner will and must decide in favor of the fraudster because the victim failed to properly defend.
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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

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

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

Back to Basics: Here is what you need to know when you start defending against foreclosures and other collections

  1. Although you issued a promise to pay, it does not currently appear as an asset on the books of any company or person. THAT ABSENCE IS A FATAL DEFECT IN ANY CLAIM AGAINST YOU. The process of securitization extinguishes all risk of financial loss by extinguishing the underlying obligation and therefore the legal debt. Any aggressive effort in discovery on your behalf that requires the opposition to show the existence of a loan account receivable due from you and any documents or transaction history in which the loan account receivable was established will reveal its absence, or the inability to prove the existence of the debt. Either one is equally effective in defeating claims to enforce it.
  2. The absence of the asset is legally equivalent to the absence of a creditor.
  3. The absence of a creditor eliminates or completely undermines any claim to represent a creditor.
  4. The company claiming to be the servicer is not performing and never has performed any servicing functions such as the collection of money or disbursement of money. Therefore any record (e.g. payment history) is not admissible as an exception to the hearsay rule since neither the “servicer” nor its predecessors ever handled any money from anyone.
  5. The lawyer who filed the foreclosure has most likely never had contact with the named designated plaintiff or claimant. Hence while the filing of the lawsuit is an implied representation that the lawyer represents the named designated claimant or plaintiff, it is not supported by facts in the real world. Efforts to pierce through this veil and hold the attorney accountable have failed because of the faulty application of litigation of immunity.
  6. If the foreclosure nevertheless results in the formal sale of the property and a deed is issued, the proceeds of sale from the auction or the liquidation of REO property will not result in posting a credit to any loan receivable account. The money proceeds will instead be distributed as either revenue or uncategorized receipts that are frequently channeled to offshore accounts.

 

How the Lawyers for the Banks Lie to You and the Courts

documents that pledged, sold, transferred anything relating to transactions with homeowners were regularly fabricated with false information and then used in subsequent documents as though there was actual trading going on. But there wasn’t. And there isn’t. And that is why the opposition in foreclosures can never give a straight answer to questions about any presumed transaction in which value was paid for the document purporting to make such transfer, assignment, appointment, or endorsement. No such transaction exists.

This is not subject to debate. It is however subject to testing. It is the reverse of “ask and ye shall receive.” If you ask, you will never receive. The homeowners who win foreclosure are those who used that fact — the inability to produce evidence in lieu of legal presumptions about transactions in which rights were sold.

The big lie is that anything happened when in fact nothing happened. It started with the origination of the transaction with the homeowner when the homeowner received money under the false premise that the money paid to him/her or on behalf of the homeowner, was paid as part of a loan transaction. As a result of that false premise (in most instances) the homeowner is lured into signing conventional-looking “loan documents.” What is missing is any statement or confirmation that the named lender ever loaned money to the homeowner. Because it is an absent element, nobody notices this glaring error unless they are a lawyer who is pondering the situation.

Up until the era of securitization, there simply was no reason for questioning whether the named “lender” was engaged in a loan transaction or something else. What else could it be? And with lawyers now being cut out of most of those transactions, nobody is questioning anything. But in nearly all such transactions the named “lender” was not engaged in the practice or effect of “lending” and since most such transactions were “refinanced” it may fairly be said that in most cases, no consideration was paid.

The only exception would be cases in which the homeowner received extra cash out of the “refinance”. In those cases, to the extent of money received the homeowner received at least some consideration. The rest of the consideration —paying off the old “debt” — has not occurred.

The purported “refinancing” is merely an elaborate scheme to start a new securitization scheme in which unregulated securities are sold to investors without ever retiring the homeowner, debt (which no longer exists), or retiring the old securities that were issued.

Unlike the business of lending money, securitization is an infinite process because the securities do NOT convey any right, title, or interest to any underlying obligation, legal debt, note, or mortgage issued by the homeowner. Untethered from any representation of ownership of the promise issued by the homeowner, the investment banks could issue an infinite number and variety of securities that were merely referenced on reports about the transaction with eh homeowner rather than ownership of anything arising from the transaction with the homeowner.

And before you say that is impossible, think about this. Why did the banks hire more than 10,000 convicted felons in the state of Florida to sell these financial products to homeowners? The felons were all convicted of economic crimes. They were already vetted for the one purpose that the banks wanted — i.e., to lie with a straight face and be convincing. How else did people who were delivering pizza without any education or training, go from earning over wages to millions of dollars? Where is that money come from? Do the math! It can’t be from the interest income from a loan that is purportedly the nature of the transaction with the homeowner. There is no enough interest in the world to cover the huge commissions and profits that were paid to everyone who was in on this feeding frenzy.

But in order to maintain the illusion, the banks needed to get creative after the origination of the transaction with the homeowner. They needed to establish a paper trail that would lead everyone to believe that multiple parties were engaged in due diligence and trading interests in transactions with homeowners when inf act no such trading occurred.

And they did this by eliminating a statement from documents that appeared to be facially valid. The statements, as is required today and for all time by anyone during business with a bank, is called a warranty and essentially says “I own this property or right.” Such statements are universally missing in action in all chains of all documents leading up to claims of administration, collection and enforcement of the “loan closing documents” (note and mortgage) issued by the homeowner.

The banks knew that if institutions were named in documents they would be presumed to have been involved. The idea that any large brand name commercial banking institution license the use of its name in an agreement with Wall Street securities brokerage firms that operated as “investment banks” had some precedent in payday loans, but never before on his scale. So with tacit or explicit permission that concocted documents in which the names of government entities and large band name banks were used even though they had no involvement in any transction.

So documents that pledged, sold, transferred anything relating to transactions with homeowners were regularly fabricated with false information and then used in subsequent documents as though there was actual trading going on. But there wasn’t. And there isn’t. And that is why the opposition in foreclosures can never give a straight answer to questions about any presumed transaction in which value was paid for the document purporting to make such transfer, assignment, appointment, or endorsement. No such transaction exists.

This is not subject to debate. It is however subject to testing. It is the reverse of “ask and ye shall receive.” If you ask, you will never receive. The homeowners who win foreclosure are those who used that fact — the inability to produce evidence in lieu of legal presumptions about transactions in which rights were sold. In the end, no robowitness, no document, and no other report or evidence can ever establish an event that did not occur — unless it is offered or proffered and the homeowner fails to contest it.

Just because a loan was pledged, doesn’t mean that there was any warranty of ownership nor any previous purchase of the underlying obligation. That is precisely the game they are playing. They keep issuing documents that purport to transfer something hoping that it will give rise to the assumption that something must have been transferred. They do this in assignments, pledges, and various other instruments that bear a title of some conventional name of a document of action or transfer of ownership or rights.

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Absent a warranty of ownership, which they always scrupulously avoid, they are not even saying is that the transferor or the transferee has given or received anything. absent an actual transaction in which value was paid for the underlying obligation, there was no effective conveyance, pledge, or action.
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but the appearance of the document creates the illusion that something happened. and behind that, there is the assumption that since something happened, the parties who are named in the document had a right to do what they did. From that assumption, a judge will most often leap to the legal conclusion is that a legal presumption should be applied to the document, based upon its apparent facial validity. But in nearly all cases, there is no facial validity because there is no warranty of title.
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In the absence of a challenge from the homeowner, this error is engraved in stone for the purposes of that case. Once accepted it is very difficult to dislodge.
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DID YOU LIKE THIS ARTICLE?

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

Click

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

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

Change the Rules, Forms and Procedures to Comply With Existing Law

SPONSORED BY APON
Back when we all made live appearances at seminars for lawyers seeking Continuing Legal Education, I would go to any CLE seminar that involved banking, securities, property law, contract law, or litigation. Any doubt about the threat I posed to the banks and their lawyers vanished when  I went to those seminars. They clearly were not interested in how to prevent foreclosures or how to rein in excessive or predatory behavior by commercial banks or securities brokerage forms (as “investment banks”).
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They also were clearly disinterested in how to make corrections to corrupted chains of title caused by the misbehavior of banks. And nobody wanted to talk about the basic elements of an enforceable contract — and what could happen to those elements in the process that Wall Street calls “Securitization.”
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I am usually perceived as the enemy of banking, securitization “lending.” The subtle subtext is that I am the enemy of capitalism. But as you will see in this book I am merely the enemy of theft. Capitalism is the engine of our economy and investment banking is the engine of capitalism. At the heart of capitalism is securitization of assets — i.e., the sale of pro-rated shares of assets to distribute risk and reward and make the purchase of those assets more appealing to buy and trade.
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If the seminar was about banking law or foreclosures, I would register, enter the room and sit down. Immediately upon my being seated, the area around me would be cleared out by lawyers moving to other locations in the room. I was the only one seeking information about how to challenge banks, not represent them. The reason they ran was that they could be fired for merely associating with me in any way. If I reached out to shake anyone’s had out of cordiality, they would turn away. But some of them would tell me confidentially that I was 100% right and that they were in fear of losing their bar license or worse (going to jail).
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I suspect my reputation was broadcast far and wide to foreclosure mills because of a 6-day deposition that was taken in 2008. 16 of the largest banking institutions in the world employed the largest law firms in the country to test the prospective testimony of an expert witness in the securitization of debt. It was grueling. 8 hours per day.
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The witness was me.  I was literally having silent heart attacks during the ordeal. I didn’t know I was headed for heart failure that would require the replacement of a heart valve in open-heart surgery.  They said my critique was grandiose and my reply was that my critique was not nearly as grandiose as the fraudulent plan and scheme of their clients. They even bugged my home office, although I have no idea why that occurred or what they thought they might have gained. As far as I know, the deposition was never transcribed and certainly never published. And nobody with credentials has ever disputed a single factual assertion, factual conclusion, or legal conclusion contained in that testimony. So far, they have had 13 years to do it.
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I have been threatened with every type of prosecution without any effect. Despite all attempts to stop me in my mission, there has been a total absence of any person with credentials saying that I am wrong about the nonexistence of the current debts, wrong about the illegal appointment of a claimant who was disinterested in the outcome of foreclosures, and wrong about the lack of any right to say that a lawyer is representing a brand name bank, when that is not true. And nobody wants to talk about the erroneous application of “litigation immunity” that allows lawyers to make false statements about nonexistent claims —- and by extension protects the parties who concocted documents and stories that were not in the least based in facts or real events in the real world.
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And the threats against me are nothing when compared to the dozens of lawyers who were successful in foreclosure defense and then banned from such practice, or disbarred on baseless grounds or grounds upon which disbarment should never have been applied. This is paranoia based in fact and it accounts for why homeowners cannot find a lawyer to represent them in defending and confronting illegal foreclosures.
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FORMS THAT DO NOT INFORM
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The practice of law, even trial law, is all about forms that are published and used throughout American jurisprudence. When I started almost 50 years ago we maintained libraries in our office of “form books.” Now we have those form books online, from which we copy to our computer and paste into a new document what we want to say.
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Lawyers and pro se litigants are not required to create a new narrative for each document they produce   – unless they are trying to do something that has never been done before. Law is all about precedent. And the practice of law is about following precedent. The practice is to find the form that comes closest to your situation and then tailor it to fit your needs.
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The difficulty for pro se litigants is two fold: (1) they don’t how to find and recognize the appropriate form and (2) they don’t know how to use or present it in court. This is compounded by the desire to find a form that is “good enough” and then rely on the judge to do the rest. Most pro se litigants do not realize that the judge is prohibited form acting as their lawyer. This ignorance has led to the widespread believe that the judges are corrupt when they make rulings that are adverse to homeowners. That is simply untrue.
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But the worst problems come from the fact that there are no forms for foreclosure defense that are approved for use, reflecting the realities of nearly a trillion dollars in settlements worldwide arising from hundreds of administrative findings of fact that the documents used in securitization and foreclosure are fabricated, false and forged. And worst yet, the documents for filing foreclosures are based on approved forms that are based upon doctrinal assumptions that have not been applicable to most foreclosures since 1995.
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THE JOB OF A JUDGE
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It is true that judges have biases. The reason is that they are human and they have personal opinions. But in most cases those personal opinions inform their decision, rather than control it. The job of the litigator defending a foreclosure is to direct the judge’s attention to his or her job — calling balls and strikes and then ruling on what is left for the court to consider in rendering judgment.
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The judge’s job is required to be performed in accordance with directions issued by the legislature and the Supreme Courts of the State and the Nation. If the legislature says that the minimum mandatory sentence of a crime is 20 years, the judge has no discretion to alter that, because of the constitutional doctrine of separation of powers. Only the legislature can pass laws. The court’s job is to apply the laws, not make them.
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WHO  GOVERNS WHAT JUDGES CAN DO?
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However, it is accepted practice for the Supreme Court of each state to publish “guidance” that amounts to the enactment of law. One of the ways this is done is through publishing pre-approved forms that are not required but  rather intended to be used as a guide in preparing lawsuits, defenses, affirmative defenses and motions.
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Such forms and guidance are the generally the result of committee research and planning based upon established statutes and case decisions. In that way the “research” has already been done and the net effect is a reduction in time and effort and therefore a reduction of cost to the consumer in hiring a lawyer to file a lawsuit, for example.
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The politics behind this process causes some corruption in the outcome. In the case of foreclosure law and defenses, this is especially apparent. Generally speaking the people who serve on the making committees are people who are thrust into those positions because they are supported by highly influential actors — like politicians who are backed by high dollar donations from extremely powerful commercial enterprises, like investment banks.
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Like everything else in foreclosure law and procedure, this shows up in the absence of things that would ordinarily be basic training. For example, other than the Garfield Continuum CLE seminars, there is not one instance about which I have been informed, in which lawyers are trained to defend foreclosures in seminars sponsored by any state or national bar association. But there are many seminars in which the prosecution of foreclosures is sponsored by state bar associations.
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This is odd because of the universal knowledge of the practice of fabricating false documentation depicting nonexistent events in the prosecution of foreclosures. Despite hundreds of billions in “settlements” and dozens of government and expert reports showing that the title reports in most countY reporting offices were fatally corrupted, nobody other than my enterprises has been sponsoring accredited seminars for lawyers in which potential winning strategies and tactics could be employed for homeowners who were being stuck with corrupted title through no fault of their own.
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Judges need continuing legal education too. But like nearly all lawyers, they are not getting it if it has anything to do with the validity and legality of foreclosures against homestead property. Instead they are informed by pre-approved forms that simply assume that everything is the same as it was 30  years ago. It isn’t and it it never will be the same again.
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THE ORIGIN OF THE PROBLEM WITH THE PRE-APPROVED FORMS
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You need to understand that the pre-approved forms were not created as the result of some conspiracy or corruption. It wasn’t even a mistake.  Those forms, when created, reflected reality. The reality was that everyone could rightfully assume that the basic elements of the prima facie could be considered as though they were specifically pled if they merely made reference to themselves as a lender and attached copies of the loan documents. No allegation that the claimant was suffering a loss because it was almost always true that anyone who came forward with such a claim was in fact suffering such a loss.
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And yet, if you look at the old foreclosure lawsuits, they always said that the Plaintiffs were suffering a loss due to nonpayment. The reason is that the basic elements of a lawsuit were customarily stated even if they were not required to be stated according to approved guidance forms published by the Supreme Court. The basic elements, regardless of whether the case is in contract or negligence or anything else, are:
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  • DUTY
  • BREACH of DUTY
  • DAMAGES
  • CAUSE OF DAMAGES
So an example of this would be that Defendant had a duty to exercise care while driving. He failed to control his vehicle which ran off the road and hit Plaintiff causing extensive damages to Plaintiff. If it is a debt, then the example would be that Plaintiff gave Defendant money as part of a loan deal. Defendant agreed to repay the money. Defendant failed to repay the money, causing financial loss to Plaintiff.
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The fact that a proposed witness to a car accident was in Denver when the event is alleged to have occurred in Pittsburgh is a clever distraction. It causes the judge to think of the accident as real. The real questions are first whether there was an accident, and if so, did Plaintiff suffer any legally recognizable injury as a result of the accident? In foreclosures pointing to the nonpayment causes the judge to think of it as a default particularly when a default has been declared. But there is no legal basis for declaring a default if the declarant has not suffered any loss and does not represent anyone who did suffer a loss.
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The attribute of securitization as practiced on Wall Street that is most difficult to understand is that nobody gets less money as a result of homeowners Jones or Smith refusing or failing to make a scheduled payment. Everyone has either already been paid or continues to get paid. This is a cliff, not just an impediment, for claims for administration, collection, or enforcement of the homeowner’s promise to make a scheduled payment. No court is empowered to entertain a claim simply because a disinterested third party has information about the Defendants’ personal finances.
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There must be a present controversy (not hypothetical and not future) between the two parties in litigation where one owes the other a duty, failed to comply with that duty and the other suffered specific damages arising from the failure to perform a duty owed to the claimant. The banks have elevated the hypothetical default to the illusion of a present default and then prosecute claims as though the duty exists and it was breached as to them. No such thing has ever occurred in the context of securitization.
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Nobody ever had reason to change the basic long-standing rules and forms because they were working just fine. Then came false claims of securitization of debt as a cover for elimination of the debt as an asset — the loss of which would require a report of financial loss that would necessarily depress the value of the common stock of any company carrying such an asset on its financial records. But now the basic rules and pre-approved forms have been weaponized to allow illegal claims and unjust results. Wall Street simply “did away” with the debt until such time as they had an opportunity to claims the existence, ownership, and authority to administer, collect and enforce it.
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The only thing Wall Street needed to do was continue to promote the illusion that nothing had changed. The lawyers who came up with the scheme realized that their target audience was the homeowners who in turn would perpetuate the disinformation themselves. This is what supported millions of foreclosures, abandonment of homes, zombie foreclosures etc. It produced a reverse grassroots movement that as it climbed the chain of command in the courts and legislatures, it convinced almost everyone that nothing had changed and that if homeowners were to win the case, they would be getting an undeserved windfall.
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And yet, in thousands of individual foreclosure cases, homeowners were winning. By focusing their defense narrative on the existence, ownership, and authority to administer, collect and enforce the nonexistent debt, they were winning. As long as they were granted court orders enforcing their timely and well-drafted discovery demands for evidence of proof payment, ownership, and authority, they were winning because the opposition had no answer.
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THE WINNING STRATEGY
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Until the forms are changed and the courts start insisting on assurances that the named designated claimant is in fact a legal claimant possessed with a legal claim based upon a financial loss, the homeowner must, either pro se or with the assistance of counsel, fill in the gaps by not admitting a single thing that is said against them starting with “this is a foreclosure,” and culminating in a direct challenge to the existence of a financial loss that will be paid as a result of the foreclosure.
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Keep in mind that loss of future profits is not what is covered by statutory schemes allowing foreclosure. The loss must be the result in the diminishment of the value of a financial asset (“the loan”) arising from the conduct of the homeowner. If everyone is still getting paid, there is no loss. If there is no loss the law does not allow a claim for expectant profits — at least not in a foreclosure case.
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Also keep in mind that if the opposition cannot document the existence of the loan account receivable from the homeowner, the asset does not exist. Notes cannot be enforced t pay a debt that does not exist. Mortgages and deeds of trust cannot be used to force the sale of the property if there is no debt to satisfy.
DID YOU LIKE THIS ARTICLE?

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

DONATE TO APON!!

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

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

Tonight! How the Logic of the Courtroom Gives Judgments and Sells Property for Nonexistent Claimants with Nonexistent Claims Represented by Unscrupulous Attorneys 6PM EDT 3PM PDT

Thursdays LIVE! Click into the Neil Garfield Show

Tonight’s Show Hosted by Neil Garfield, Esq.

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

There is a logic to the laws governing litigation and trial procedure, which is often based on fact. But those who really know how to apply those protocols also understand how they can be twisted away from the facts. And that is the problem for the homeowner.
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Ignorance of these protocols is no excuse, and those protocols can kill your chances of winning in court. If the initial cut by the surgeon severs an artery supplying blood, nutrients, and oxygen to the brain, there are only a few minutes to correct the problem — if it can be corrected.
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An initial error by the trial lawyer can sever the chances of ever winning the case. In foreclosures, the trial lawyer is often the homeowner without a lawyer because few lawyers can be found to take these cases.
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So the defense narrative is never fully developed under such circumstances. that means that at the outset, the artery is cut. The litigation plan is never considered must less decided upon, with various alternative plans based upon obstacles that appear during litigation.
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And the most common mistake is referring to a servicer simply because that is how it was presented.

Stop Assuming You Know Investment Banking

The greatest challenge in unraveling the securitization mess is that that courts, judges, homeowners, and lawyers think they know what they are talking about. They do not. Without any statement on record, they assume things that are not even alleged much less be proved by a shred of competent evidence. They all rely on factual assumptions that are at best implied, and at worst unstated.
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The warehouse loans were not paid because they too were not loans. The use of the label “warehouse” loan was used to disguise the real agreement which had previously been called the “Purchase and Assumption Agreement” where it was clear that the originator had no right to take or touch any money other than what was paid to it as a fee. In all “warehouse” labeled deals the “borrower” is the thinly capitalized eternity that had no credit history and no credit rating. It was unnecessary because credit was not involved. The originator as “borrower” in agreements titled as “warehouse”, enters the typical transaction with the homeowner as merely a sales agent.

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This has a very substantial effect on the legal status, duties, rights, and obligations of the parties that are concealed from that point forward. Since the originator never received any money, it was neither a borrower nor a lender. The mask of advancing money on behalf of the originator is removed when the process of underwriting and accounting for the transaction is analyzed. And this is common sense.

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No Wall Street company (or anyone else!) is going to pump hundreds of billions of dollars into or on behalf of a company that can’t possibly answer for mistakes, errors, omissions, or malfeasance (see Taylor Bean and Whitaker). It may have occurred a couple of times, but on the whole, it would be just stupid to allow the temptation of skimming the money flow to the tune of hundreds of millions or even billions of dollars. And no Wall Street company has agreed to do that. There is no warehouse loan. This is a table-funded transaction that was not even a loan at all.

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It’s easy to get lost in the weeds. Courts do it all the time. I just read a case from December 2020 in which the court recited, as though it was already firmly established, that the certificates sold to investors were collateralized with loans (the underlying obligation, legal debt, note, and mortgage) of borrowers. It is recited as true, even axiomatic.
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And THAT is why the courts assume that even if the foreclosure documents are irregular, the proceeds from the forced sale of a homestead will eventually get to those investors. But they never see a penny.
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But it isn’t true and it never was true. And the courts (and others), filled with judges who know virtually nothing about investment banking, continue to analyze agreements between the various players as if they know something or understand it. I can guarantee you that no party ever told that court that the certificates were collateralized by homeowner transactions. Yet the court makes that leap every time.
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The lawyers for the investment banks consistently stay away from directly making those assertions in writing and even in argument they do not expressly state that the loans are linked to the securities at all much less as collateral for the IOU’s issued as “Certificates” or “Mortgage Bonds.” Those lawyers know that their task is merely to avoid disabusing the court of the notion that the loans were real, the ownership of them is real and that they are to be treated as real for all purposes that serve the investment bank.
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But when it comes down to liability for representations and warranties, it turns out that the “trustee” has absolutely no right, title, or interest in the certificates or any transaction with any homeowner.
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Neither the trustee nor the investment bank bookrunner accepts any liability for misrepresentations concerning the contents of a fictitious loan portfolio — nor improper underwriting (appraisal fraud etc.) of the transactions they wish the court to consider as “loans,” (but without any liability for violating laws, rules and regulations governing lending,s servicing, collection and administration of loan accounts).
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And lawyers for the investors (pension funds etc.) are stuck with the requirement of preserving the “investment” of their client while alleging or trying to allege (without effect) that the reasons for the investment did not exist. The truth is that it was not an investment at all. it was an unsecured loan for a completely discretionary promise to make scheduled payments to investors. the promise was made by the investment bank acting under the name of a fictitious trust and in many cases, the documents between the parties say exactly that.

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Without access to the accounting records of all the parties involved in a securitization scheme, no homeowner and no lawyer is going to be able to produce evidence supporting a claim that the entire scheme was fiction.
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But lawyers and homeowners can and must undermine claims that rely on securitization as real. This is easier to do than most might think. The reason is that the current statutory and common law supports two notions: (1) assignment of mortgage is a legal nullity without the transfer of the debt and (2) no foreclosure allowed unless value has been paid for the underlying obligation. In the context of securitization, the lawyers representing the named designated claimant cannot and will not respond to demands that such transaction(s) occurred.
DID YOU LIKE THIS ARTICLE?

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

Click

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

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

Why the Ban on Hearsay Evidence Is So Damn Important in Foreclosures

What is hearsay evidence?

The old Rules on Evidence did not define hearsay. Evidence is hearsay if the probative value is not based on the personal knowledge of a person. The knowledge is that of another person and is not a witness to the case.

It is the personal knowledge that determines what hearsay is because evidence outside of personal knowledge may be considered unfounded information.

Hearsay is now defined as a statement other than one made by the declarant while testifying at a trial or hearing, offered to prove the truth of the facts asserted therein. The statement may be an oral or written assertion, or a non-verbal conduct of a person, if it is intended to be an assertion. Hearsay evidence is inadmissible except as otherwise provided in the Rules…

see https://www.panaynews.net/hearsay-rule/

I actually found the clearest explanation of hearsay in a plainly worded article for Panaynews.com in the Philippines by Ayin Dream D. Aplasca. 

It is a very simple proposition. The Court will not allow evidence that is not presented from a credible natural person with personal knowledge of the facts in dispute and who is subject to testing before and during the trial.

What is happening in foreclosure trials across the country, and sometimes even at Summary Judgment is that testimony or affidavits are being accepted into the court record from natural breathing persons who have no personal knowledge about anything relevant to the case at bar.

Everything that is contained in their live testimony or affidavit (assuming they signed the affidavit — see robosigning) is based upon data obtained from an outside source. The witness or affiant knows nothing about the transaction with the homeowner and has never had any communication or other involvement with the homeowner starting with the origination up to the moment that such testimony or affidavit is offered.

Further, the witness or affiant is not employed by the named designated claimant in the foreclosure proceeding. Rather, he or she has been designated to testify on behalf of a company claiming to be the servicer for the named designated claimant. Usually, the witness or affiant has no other job except testifying so they actually know virtually nothing about their “employer” who frequently pays them as an independent contractor working out of their home.

And lastly, their “employer” has been party to many settlements or judgments in which lines, damages, and agreements were reached in which the employer agreed to stop fabricating false documents for foreclosure.

Only in foreclosure cases would such a person be allowed to set foot in the courtroom other than as a spectator.

With that backdrop, it is astonishing that such a witness would be allowed to testify or that their affidavit would be accepted into the court record much less used as the truth of the matters asserted. But the truth is the ignorant robo witness is accepted, their testimony does come into the record and it is relied upon by most judges as the only relevant evidence in the case.

This does not happen because judges are corrupt or biased. It happens because homeowners litigating for themselves do not know how to litigate and lawyers who represent them fail to prepare properly for hearings and trial. As an old mentor of mine once said, “Objections are not miracles that show up at trial. They are the product of preparation and strategy.”

In most cases(not all) properly framed, well-timed objections are sustained by trial judges. In most cases, any such objection that is sustained will be followed by a motion to strike the evidence that was offered by the witness who knows nothing, saw nothing, and can only testify according to a script that has been memorized.

That motion will also be granted — but only if someone asks for it. If the litigant does not ask for it, the judge is prohibited from inserting his own strategy in place of the strategy (or lack thereof) of the litigant. I have personally conducted interviews and otherwise spoken privately with people I know who serve on the bench. They are constantly amazed by what litigants allow the other side to get away with.

The obvious conclusion is that the only component of allowable evidence that is being presented in most foreclosure cases is a natural breathing person. No other elements are present.

But the way the system works if you don’t know the elements and proper timing of objections based on hearsay, foundation, leading, etc. you are probably not going to properly object when the objectionable question and answer was staged. And if you don’t know enough to ask the court to strike the objectionable answer that came out while you were objecting it stays in the record and it almost always is considered by the trier of fact.

There are two morals to this story. Stop pretending you know when you don’t. And stop pretending that you are prepared when you have not considered the crucial elements of the prima facie case and a cogent plan to undermine the ability of the opposition to establish that case against the homeowner.

DID YOU LIKE THIS ARTICLE?

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

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

APON Members Will Be Invited to APON/Garfield Q & A Webinar

Press Release

June 6, 2021

 

American Property Owners’ Network

Announces Launch of Program to Stop Most Foreclosures—

APON Members Will Be Invited to APON/Garfield Q & A Webinar

Those Who Join APON by today get into the Zoom Webinar free

The American Property Owners Network (APON) formed a year ago with the express mission of organizing mass political and judicial action to assist groups of property owners whose property rights are being threatened by unlawful practices of common foreclosure claimants.

APON and others concerned about the influence of global banks and the financial sector over our government, as well as how the pandemic will affect homeownership, are going to court in Florida in a lawsuit to change foreclosure court proceedings, which could greatly limit the ability of current foreclosing parties to take people’s homes and property, and stop the upcoming tidal wave of foreclosures across Florida and the country. Renowned financial expert and foreclosure defense attorney Neil Garfield will lead the fight.

The new agreement about the suit was announced between The American Property Owners Network (APON),  a 501c4 non-profit organization, and GTC Honors, Inc. which sponsors several blogs, meetings, CLE seminars for lawyers, and seminars for homeowners seeking to avoid foreclosure.  The agreement seeks to grant funds to legitimate efforts to conform rules, forms, and court procedures to the current realities arising from claims of securitization of debt. In general, current rules do not conform to the UCC requirement for sworn validation of a debt prior to the start of any foreclosure litigation, which gives rise to false documents being filed in court by foreclosure claimants who have no legitimate claim, or right to any debt. Everybody who joins APON today will get free entrance into the upcoming Webinar (see below for details), at which Neil Garfield and APON will answer questions from participants and the press.

APON also seeks to organize mass court actions for damages against the large investment banks and their co-venturers for falsely initiating foreclosure process on debts that either do not exist or obligations that are not owned by the named claimant. Larry Nemec, APON’s President summed up their efforts: “After nearly a trillion dollars in settlements, with the megabanks, we still do not have any resolution in our society about past, current or future attempts at unlawful foreclosure. We intend to do something about that and now we think we have a coherent plan and skilled people to do it.”

APON is sponsoring a Zoom webinar/press conference/membership drive Webinar on June 23rd, with Neil Garfield, a nationally-known financial expert, and foreclosure defense attorney.  The attorney and APON representatives will be answering questions from attendees. Those who join today will be invited to register for the event without charge. Others who register will be charged $49, in order to raise money for APON’s upcoming litigation.

To sign up to be a member and/or to volunteer, go to www.apropertyownersnetwork.org., scroll down to the bottom of the homepage and fill out the form.

 

Why are you need to understand the difference between the mortgage and the note

Most pro se litigants and many attorneys start the defense with “yes, but”. But the successful defense starts with “what obligation?”

Technically speaking, the mortgage is not evidence of the legal debt or the underlying obligation. It might not even be evidence of the note. The note is evidence of an underlying obligation.

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The mortgage can only be introduced as evidence of an agreement to provide collateral for the performance of a duty: the duty to make payment on an underlying obligation. If there is no duty, there is no enforceable lien even if it is executed and recorded. There are several courts throughout the country that are making a mistake by treating the mortgage as though it was a note. It isn’t.
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A legal duty does not exist unless there is BOTH a person who is required to do something and a person who is entitled to receive the benefit of the performance of that duty. There are no exceptions to this rule in our legal system.
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Homeowners and their lawyers get confused because they know they have made a promise to pay which could create a legally enforceable duty if there was someone to whom the performance of that duty was owed. But at any time that the receiver vanishes, the duty ceases to exist. This leads almost everyone down the wrong path: “if the homeowner made a promise to pay, it must be due to someone.” In the world of investment banking that is simply not true.
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PRACTICE HINT THAT SHOULD NOT NEED TO BE STATED: IF THERE IS NO OBLIGATION OWED TO THE DESIGNATED CLAIMANT THERE IS NO ENFORCEABLE LIEN IN FAVOR OF THAT CLAIMANT. THIS IS 100% TRUE ALL OF THE TIME. 
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In other words, the idea that one could foreclose on a mortgage without owning a debt owed by the homeowner to the named designated claimant is pure rubbish. That idea has never been accepted in any court. The problem for homeowners is that the courts are presuming that the homeowner owes money to the designated named claimant when in fact that is not true. 
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The note could be introduced into evidence in court as proof of the matter asserted: that an underlying obligation exists. The note can be further used as proof of the terms upon which payment would be made by the maker of the note.
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And that is why possession of the original note raises the legal presumption that the possessor owns the underlying obligation. The key to all of this obviously is the underlying obligation. Does the homeowner owe money to the party that is claiming the right to be paid?
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Most pro se litigants and many attorneys start the defense with “yes, but”. But the successful defense starts with “what obligation?” They don’t deny that a promise was made to make scheduled payments. They simply contest the ability of anyone to enforce the promise. They are successful because the designated claimant is not owed any money from the homeowner.

From the point of view of evidence law, the fact that the designated named claimant is not owed any money from the homeowner is revealed by one of two things:

  • (1) an admission that the claimant carried no records of being owed any money from the homeowner on its accounting records and that it has never received the proceeds of any payment or forced collection (unlikely, in the extreme) or
  • (2) the inability or unwillingness of the foreclosure mill or the named claimant to answer interrogatories, requests for admission, or requests for production of documents.

Since every successful defense of foreclosure depends upon item #2, the reader should be aware that the evidentiary value of such a revelation is only useful to the homeowner after several motions to compel, motions for monetary sanctions, motions of evidentiary sanctions, motions in limine, and objections to the use of exhibits at trial.

DID YOU LIKE THIS ARTICLE?

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

Click

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

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

Why You Should Ask for More Money Than the “Loan” Amount

there is no incentive for the homeowner to sign the absurd documents falsely declaring that the transaction is a loan and that the counterparty is a lender. The homeowner is only left with financial loss and prospective loss of property, possession, quiet enjoyment and lifestyle. 

At the conclusion of the transaction with a homeowner, the homeowner is left without a lender, without lender compliance with lending the laws, and without a loan account. There is no possibility of settlement or modification except on a random arbitrary basis as ordered by the investment bank that controls the securitization process without ever loaning money, buying loans, or owning debt.

The counterparties to his or her transaction have an incentive to inflate the appraisal and overstate the viability of the loan in a fake underwriting procedure. The homeowner is providing the sole basis for the launch of a securitization scheme that will generate $12 for every dollar transacted with the homeowner. The fee, therefore, is the money received by the homeowner which is about 8% of the scheme. But the lie about the “Loan transaction” lures the homeowner into paying back the fee plus interest and fees.

So the bottom line is that the homeowner is assuming risks that are outside of any normal loan transaction. This includes the immediate loss associated with the inflated appraisal and the future loss generated by terms and conditions that are only understood by the investment bank that controls the securitization process. Further, the homeowner is getting negative consideration because he or she is required to pay back the fee with interest and fees involved in the fictitious servicing of the “loan” account.

The remote sellers of these warped financial products are already offering absurd incentives if one were to use the perspective of a loan transaction. They will pay everything including your first few payments. And practically every service provider and every sale of every product involve a concurrent or offer of fictitious credit funded by a securitization scheme in which securities are issued but no securitization of death ever occurs.

Instead of paying people who were felons convicted of economic crimes to sell these financial products, the incentive payments should go directly to the homeowner. It is the homeowner who is assuming all the risks. Nobody fails to receive an expected payment that is legally due regardless of whether or not the homeowner makes a scheduled payment.

The securitization scheme resembles artwork by M.C. Escher who famously created a work called Penrose Staircase or “the impossible staircase.” Without the homeowner agreeing that this is a loan transaction and agreeing to make payments there can be no sale of securities that are referenced upon the data of that transaction, regardless of the ownership of the “rights” supposedly acquired in that transaction.

But it isn’t a loan transaction. Since the homeowner is the unwitting participant in this endless series of fabrication and deception, they should be paid for it. If the homeowner is going to agree to pay back a certain amount of money, then in order to grant the homeowner some consideration for participation in a highly profitable securities sales scheme, he or she should get much more money (another 8%)?) Without that there is no incentive for the homeowner to sign the absurd documents falsely declaring that the transaction is a loan and that the counterparty is a lender.

The homeowner is only left with financial loss and prospective loss of property, possession, quiet enjoyment and lifestyle. 

Tonight! Foreclosure and Eviction Moratoriums Ending June 30! 2PM PDT 6PM EDT

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

with Attorney Charles Marshall

Or call in at (347) 850-1260, 3 pm Pacific Thursdays

The National Foreclosure Moratorium and associated forbearance enrollment applying to various Government-back loans (Fannie Mae, Freddie Mac, HUD/FHA, VA, USDA), is set to expire June 30, 2021. As of this date, a possible extension to let’s say September 30 does not appear to be on the horizon, though it may still happen.

The national eviction moratorium thru the Centers for Disease Control (CDC) likewise expires June 30.

Today on the Show we will break down the nuts and bolts of what these foreclosure and eviction protections have looked like, and also cover what to expect in the months ahead, including discussing the various end dates of certain State deadlines, which largely track the Fed expiration of June 30. A notable outlier is New York, which extends its eviction ban through August 31, 2021.

The hidden problem is that many homeowners and renters have been lulled into a sense of complacency about the mounting charges for rent and claims for mortgage payments. HIt by economic hardship, many households had to spend the money on other necessities to live. They don’t have the money to pay off the “arrears.” And many still don’t even have the income to do so.

This presents a myriad of issues. But first, you need to start with the basics of the elements and requirements of the moratoriums and then move on to the elements and requirements of making a claim for a debt that may not exist or which cannot be legally claimed by the lawyers or parties who are making the claim.

How to Understand the Game of Foreclosure: Baseball and Debt

The debt is like the ball in a baseball game. It is either there or not there. It doesn’t get invented at the end of the game. If it is not there then all you are watching is a video game that portrays a baseball game. If the debt is not there, there is no claim, no lawsuit and no foreclosure.

This is the discussion that Wall Street banks willa void at any cost. Once called upon to produce the debt, they are dead in the water.

It is very challenging for someone like me to find the best words to describe what the Wall Street banks are doing. Back in 2006, I used the food processor analogy. I said if you put the apple, orange, and banana in the food processor it is impossible to bring the apple to court with you because you can’t reinvent it. It’s gone. That was interesting but it didn’t help as many people as I wanted.

Recently I hit upon a new analogy that I think makes the case more succinct. I continue to talk in legal terminology about the debt, which is the point of any effort to administer, collect or enforce any written instrument (note or mortgage) signed by the homeowner.  If there is no debt in play then there is no case to adjudicate regardless of how badly someone wants to get money from a homeowner. Our legal system does not intentionally permit people to use legal processes purely for fun and profit. But there are loopholes that enable people to do so.

So the analogy is a baseball game. Is there a game if there is no baseball? In the courtroom that is an interesting question. If there is no baseball and the players are on the field swinging bats, raising their baseball gloves, and running around the field what would be happening? Anyone who has recently watched a spectator sport knows that the broadcaster uses technology to enhance the viewing experience. So for example in hockey or baseball where it isn’t easy to see the ball anyway, they use graphics to show you the location and direction of the ball or puck.

You see where this is going. Since you probably can’t see the ball or puck, why not just have the players be actors pretending they are hitting or catching the ball or puck? Wouldn’t it be true that virtually nobody would know the difference, since everyone relies now on computer graphics. The players have in large part become actors in a drama, rather than actual competitors.

So the answer to all of the questions is simple: was there an actual baseball or not? That answers the question of whether any of the actions portrayed on your TV were real or not. In court, here is how it plays out.

Imagine that enforcement of gambling debts was legal and that someone (the promoter of the event) was suing you on a bet you made on that baseball game that had no baseball. According to them, you lost the bet and you didn’t pay. They would say that you placed a bet on the outcome of the game and that would be true. They would say that you didn’t pay it which would also be true. They would produce business records showing the broadcast, which would be accurate even though such records would not be true.

Your defense would be that you were betting on the outcome of a competition and not a drama that was scripted by the people who seek to enforce the bet. And you would be right. And now, here is how the promoter of the drama (“game”) would win.

By making the initial allegations about the bet and the failure to pay out, along with a direct allegation of financial loss caused by your failure to pay, the claimant/plaintiff has filed a complaint that states a cause of action and it will survive a motion to dismiss even though there was no baseball and no game in the real world. The event that was the subject of the transaction never occurred. 

That means judgment will be entered against you unless you raise defenses and deny the allegations of the complaint in whole or in part. The promoter of the event will have had their lawyers draft it such that you are unlikely to be able to deny the main allegations. So you would be forced to allege affirmative defenses and prove them. You can’t prove that the game never happened and that it was only a scripted drama without getting discovery from the promoter who has the information that would prove your affirmative defense.

So if you don’t demand discovery and enforce your rights to discovery you will lose at summary judgment or at trial even though there was no baseball and there was no game. The entry of judgment will be regarded by all courts as presumptively valid which means that there was a ball even though there was no baseball. It will also be rewarded and legally treated as presumptively true that there was a game when there was only a drama.

If you do challenge the “contract” starting when you suspect there is no game, and you are aggressive and persistent about it, you win. If you don’t, you lose.

Moral of the story: Either the ball is there or it isn’t. Either debt is there or it isn’t. What you will find is that companies like Caliber come right out and say that ownership of the underlying obligation doesn’t matter until you get to foreclosure. That just isn’t true. You can’t deny ownership or fail to report ownership and then invent it at the end of the drama. Ther est simply act that way and pretend to “sell” ownership or servicing rights to a debt that they do not own, and which does not appear on any accounting record as an asset.

The plain facts are that the presence of securitization means that there is no loan. It might be that the “loan” was extinguished by securitization or it might be that there was no loan in the first place because the transaction with the homeowner was strictly for the purpose of securitization. Either way, there is no debt if there is no accounting record of any company claiming your “debt” as an asset. if they don’t claim it, there is no foundation for alleging the debt exists. If they don’t claim it, there is no allegation of loss (which is why they never make that allegation). And that is why, in the final analysis, you want to see the money trail and the accounting records of the creditor, not the company claiming to be a servicer.

And speaking of morality, there is nothing wrong with allowing the homeowner to break free of an illegal contract. Homeowners were tricked or forced to participate in a business scheme that was entirely focused on the creation, issuance, and sale of securities. Homeowners were given money to execute the documents that made that scheme possible. They were then deceived into thinking it was a loan thus excusing the demand that the homeowner agrees to pay back the fee they received to start the securitization scheme, which is about 8% of total revenue. There was never any debt. there was only the graphic illusion of a debt that virtually everyone believed.

And THAT is why nobody ever lost money from a homeowner’s refusal or failure to make the scheduled payment on an illegal contract. With $12 revenue for each $1 of the homeowner transaction, everyone got paid. Nobody ever receives less money that month, quarter, or year because you finally stopped paying. And nobody who gets the money proceeds of forced sale of your home in foreclosure proceedings ever accounts for that money as reduction of debt — because there is no debt.

DID YOU LIKE THIS ARTICLE?

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

Click

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

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

Call to Action: A Major New Project for Homeowners —Grass Roots Petition to Change Rules of Foreclosure

JOIN US IN STARTING A MOVEMENT!!

CHANGE THE RULES AND FORMS

A rule change would require the named Plaintiff/Claimant, and its attorney to certify due diligence and factual accuracy including an assertion that is not currently required: that the named Plaintiff is suffering financial loss as a result of the homeowner not making a scheduled payment. Without that simple premise being 100% satisfied, there is no assurance that a homeowner won’t be losing their house to satisfy a profit motive (which is NOT allowed by law) rather than to satisfy a debt owed to the party who initiated the foreclosure (which is the ONLY thing allowed by law). 

Parties who are creditors are allowed to preserve profit through enforcement. They’re not allowed to create profit through enforcement. 

The reason banks and their lawyers would oppose such a change is that they can’t satsify such a requirement without lying. Failure to make the change in the rules will produce another “court run” with a tidal wave of foreclosures on a new “rocket docket” powered by faulty assumptions, lies and erroneous presumptions used to satisfy greed rather than debt.  

Many of you are aware that I am involved with APON (American Property Owners Network) in Project Rule Change involving a Petition for changes in the rules, procedures, and preapproved forms currently utilized in foreclosure. Most people don’t even know such forms exist. But the current one used as a “guide” in Florida, for example, allows a party to file the action without giving any assurance that a creditor is filing and no assertion that the action is filed to satisfy a debt owed to the named Plaintiff/claimant.
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APON is now hiring lawyers and other professionals and has started fundraising. I am inviting lawyers to participate in this venture by filing petitions in all U.S. jurisdictions. I am specifically including invitations to certain lawyers whom I regard as having been disbarred because they were successful at foreclosure defense. I also am inviting all other homeowner organizations, large and small, to join this effort. I don’t want to inundate APON management with phone calls and emails.
*
So I have devised a form that you can fill out if you are a prospective contributor to this effort. There is no limitation on who can participate. Anyone who thinks (or knows) that the investment banks have acquired too much power by promoting the myth that they are too big to fail can join this effort.
*
Whoever you are. you can contribute money, time, and/or effort to this project. If you have advanced legal skills (courtroom experience as a litigator), or if you have organizational skills for fundraising and writing grant requests. APON is completely open to alliances with other organizations.
*
Please CLICK ON THIS LINK to show your support. This is a new project that is being initiated under the name “LendingEyes.” In a petition to the Supreme Court of Florida, we will likely name APON and individual homeowners as Petitioners, along with lawyers who agree with the effort.
*
We are planning on petitioning the Supreme Court in each state because that is the ultimate arbiter of preapproved forms and rules of engagement — I..e., who must allege, certify, and attach valid documents to a complaint. While legislative changes might be helpful, that might be a bridge too far since it is only in foreclosure proceedings that this problem exists.
*
In nonjudicial states, the petitions will be similar but not the same as in judicial states. We believe that the rule change in nonjudicial states should require the realignment of parties if the foreclosure is contested. That means that while the homeowner can file a complaint for a TRO, the parties should be realigned such that the claimant, beneficiary on the deed of trust must allege the same things as in judicial states, and the homeowner must be allowed to file affirmative defenses in recoupment — something that is currently barred by the current application of the rules.

The reason to pursue a change in the rules and forms is that the current rules and current forms allow a party to file a foreclosure without alleging, certifying or even providing an exhibit that asserts compliance with Article 9 §203 UCC.

The current rules and forms allow the foreclosure lawyer to escape dismissal without alleging financial loss arising from the conduct of the homeowner. Judges make presumptions both from the pleading and the current rules and forms approved by the Supreme Court. They assume that the plaintiff is a creditor and that the homeowner is in default of payment due to that creditor. Neither one is true but the judge has no way of knowing that.

We believe that a homeowner should be allowed to invoke this new procedure without the requirement of going to a lawyer. This is not an endorsement of pro se litigation. Attempting to perform procedures that are unknown to the pro se litigant is as dangerous as performing surgery on oneself. Once in litigation, the homeowner should select trial counsel. However, we believe that the expected tidal wave of new foreclosures will be vastly reduced by the requirement of swearing under oath that the named claimant/beneficiary/plaintiff has actually suffered a financial loss to its loan receivable account owed by the homeowner.

*

It is one thing to point to a statute and say an act is against the law. Murder is against the law but that law does not stop people from committing that act. In foreclosure, the illegal act is initiating the foreclosure process without any intention of paying off debt. Without a rule change, this will continue to be done and will continue to be seen as an institutional practice.
*
The law is very simple. You may not initiate the foreclosure process without first paying value for the underlying obligation. The banks have been successful in avoiding that requirement by implication. They have fabricated documents to imply the payment of value despite the absence of any transaction in which any payment could or would be required.
*
A rule change would require the named Plaintiff to acknowledge the action (like U.S. Bank, as trustee, etc.), to directly and explicitly assert ownership of the underlying obligation by virtue of a transaction in which the named Plaintiff paid value or, if a trust, then a settlor or trustor paid value in exchange for ownership of the underlying obligation.
*
If the named claimant in foreclosure proceedings can satisfy the requirements already in the laws of every state then they should be allowed to appoint whatever servicers, collectors, lawyers, or anyone else to enforce payment. If they cannot, then none of the parties claiming authority (to enforce, collect, or even administer the presumed existence of any obligation owed by a homeowner ) are operating legally and within the requirements and intent of existing law.
*

The reason banks and their lawyers would oppose such a change is that they can’t satsify such a requirement without lying. Failure to make the change in the rules will produce another “court run” with a tidal wabve of foreclosures on a new “rocket docket” powered by faulty assumptions, lies and erroneous presumptions used to satisfy greed rather than debt.  

Many of you are aware that I am involved with APON (American Property Owners Network) in Project Rule Change involving a Petition for changes in the rules, procedures, and preapproved forms currently utilized in foreclosure. Most people don’t even know such forms exist. But the current one used as a “guide” in Florida, for example, allows a party to file the action without giving any assurance that a creditor is filing and no assertion that the action is filed to satisfy a debt owed to the named Plaintiff/claimant.
*
APON is now hiring lawyers and other professionals and has started fundraising. I am inviting lawyers to participate in this venture by filing petitions in all U.S. jurisdictions. I am specifically including invitations to certain lawyers whom I regard as having been disbarred because they were successful at foreclosure defense. I also am inviting all other homeowner organizations, large and small, to join this effort. I don’t want to inundate APON management with phone calls and emails.
*
So I have devised a form that you can fill out if you are a prospective contributor to this effort. There is no limitation on who can participate. Anyone who thinks (or knows) that the investment banks have acquired too much power by promoting the myth that they are too big to fail can join this effort.
*
Whoever you are. you can contribute money, time, and/or effort to this project. If you have advanced legal skills (courtroom experience as a litigator), or if you have organizational skills for fundraising and writing grant requests. APON is completely open to alliances with other organizations.
*
Please CLICK ON THIS LINK to show your support. This is a new project that I being initiated under the name “LendingEyes.” In a petition to the Supreme Court of Florida, we will likely name APON and individual homeowners as Petitioners, along with lawyers who agree with the effort.
*
We are planning on petitioning the Supreme Court in each state because that is the ultimate arbiter of preapproved forms and rules of engagement — I..e., who must allege, certify, and attach valid documents to a complaint. While legislative changes might be helpful, that might be a bridge too far since it is only in foreclosure proceedings that this problem exists.
*
In nonjudicial states, the petitions will be similar but not the same as in judicial states. We believe that the rule change in nonjudicial states should require the realignment of parties if the foreclosure is contested. That means that while the homeowner can file a complaint for a TRO, the parties should be realigned such that the claimant, beneficiary on the deed of trust must allege the same things as in judicial states, and the homeowner must be allowed to file affirmative defenses in recoupment — something that is currently barred by the current application of the rules.

The reason to pursue a change in the rules and forms is that the current rules and current forms allow a party to file a foreclosure without alleging, certifying or even providing an exhibit that asserts compliance with Article 9 §203 UCC.

The current rules and forms allow the foreclosure lawyer to escape dismissal without alleging financial loss arising from the conduct of the homeowner. Judges make presumptions both from the pleading and the current rules and forms approved by the Supreme Court. They assume that the plaintiff is a creditor and that the homeowner is in default of payment due to that creditor. Neither one is true but the judge has no way of knowing that.

We believe that a homeowner should be allowed to invoke this new procedure without the requirement of going to a lawyer. This is not an endorsement of pro se litigation. Attempting to perform procedures that are unknown to the pro se litigant is as dangerous as performing surgery on oneself. Once in litigation, the homeowner should select trial counsel. However, we believe that the expected tidal wave of new foreclosures will be vastly reduced by the requirement of swearing under oath that the named claimant/beneficiary/plaintiff has actually suffered a financial loss to its loan receivable account owed by the homeowner.

It is one thing to point to a statute and say an act is against the law. Murder is against the law but that law does not stop people from committing that act. In foreclosure, the illegal act is initiating the foreclosure process without any intention of paying off debt. Without a rule change, this will continue to be done and will continue to be seen as an institutional practice.
*
The law is very simple. You may not initiate the foreclosure process without first paying value for the underlying obligation. The banks have been successful in avoiding that requirement by implication. They have fabricated documents to imply the payment of value despite the absence of any transaction in which any payment could or would be required.
*
A rule change would require the named Plaintiff to acknowledge the action (like U.S. Bank, as trustee, etc.), to directly and explicitly assert ownership of the underlying obligation by virtue of a transaction in which the named Plaintiff paid value or, if a trust, then a settlor or trustor paid value in exchange for ownership of the underlying obligation.
*
If the named claimant in foreclosure proceedings can satisfy the requirements already in the laws of every state then they should be allowed to appoint whatever servicers, collectors, lawyers, or anyone else to enforce payment. If they cannot, then none of the parties claiming authority (to enforce, collect, or even administer the presumed existence of any obligation owed by a homeowner ) are operating legally and within the requirements and intent of existing law.

How Do I Escape Summary Judgment in Foreclosure?

Blaming the system might be a good argument in politics; but it rarely produces a beneficial result in the courtroom. The investment banks have found a way to weaponize the system against homeowners; but homeowners have the ability to reverse that by attacking the foundation of the claim against them.

When a document says that value was paid, you can ask questions about the transaction in which value was paid. If they can’t answer the question you can invalidate the presumption that there was a transaction in which value was paid, and thus invalidate the entire document. With no document, and no evidence of a transaction, the claim is defeated even if it was valid.

*

Summary judgment is a court procedure in which a judge decides whether there are any factual issues in dispute that are relevant to the outcome of the case. If there are no such factual issues in dispute, the judge will render judgment. The judgment could be for either side. But ordinarily, the judgment is in favor of the proponent of the motion.

*
In considering whether there are factual issues in dispute, the judge may take into consideration all of the pleadings, exhibits, and affidavits supporting or opposing the motion for summary judgment. The party opposing the motion for summary judgment needs to make it clear that there are factual issues in dispute that are relevant to the outcome of the case.
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Most homeowners admit prima facie elements of a case in which a lawsuit is brought seeking foreclosure. They admit the existence, ownership and authority over the underlying obligation, the legal that, the note and the mortgage. They further admit the authority of the servicer and the identity of the “successor lender.” Then they go on to assert that the option is fraudulent or illegal.
*
In that scenario, there are only two ways in which summary judgment can be avoided. One is the production of actual evidence supporting the claims of the homeowner. Evidence means information that is accepted by the court as admissible into the court record. Evidence must be specific and support the truth of the matter being inserted by the homeowner.
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Although in a trial, the judge may consider issues that raise questions about the efficacy of the claim against the homeowner, the ultimate decision is whether or not the greater weight of the evidence supports the finding that it is more likely than not that the claim is true.
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It is not enough to raise questions or challenges. An issue is not in dispute unless there are competing sources of information that qualify as evidence.
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The second way to avoid summary judgment is by having submitted timely and proper demands for discovery that have not been answered. Generally speaking, the judge will not take this issue seriously unless you have also filed a motion to compel. Sometimes the judge will still not take it seriously until you have filed a motion for sanctions. But the foundation for the strategy rests on the legal sufficiency of the discovery demands.
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A demand for identification of the creditor leaves open a wide variety of potential responses each of which could be considered to be legally sufficient. One of those responses could be an endorsement on a note (even if the endorsement is fabricated and false). Another would be an assignment of mortgage or beneficial interest (even if the assignment was void). Both would present an arguable valid response as to the position of the litigant.
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This is why I have been harping on the existence or nonexistence of a loan account receivable on the accounting records of the named claimant. I am quite certain that no such account exists. If you ask for it they will never give you an answer. Without that answer, you can say that they should not be permitted to take advantage of the legal presumptions arising out of the apparent facial validity of the documents, regardless of whether they are fabricated or not. When a document says that value was paid, you can ask questions about the transaction in which value was paid. If they can’t answer the question you can invalidate the presumption that there was a transaction in which value was paid.
*

In that scenario, the court does not need to decide if the claim has merit. It only needs to decide if both sides are playing by the rules. The party that is not playing by the rules get punished. The punishment might be economic, like a fine, or it might be evidentiary, like striking the pleadings or exhibits.

*
As I have repeatedly said (which most people don’t want to hear or won’t listen to) Courts are much more likely to rule in favor of the homeowner on matters of procedure than on the substance of the complaint against them. And judges as human beings are much more likely to get angry with the lawyer who refuses to comply with a court order than a lawyer or pro se litigant who is advancing a theory or defense that the judge thinks is not credible.
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So the real answer about how to escape from summary judgment is not to be there. By aggressively filing motions against the pleadings and aggressively prosecuting demands for discovery, the opportunity for even filing a motion for summary judgment is diminished.
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The problem for most homeowners is that by the time they learn anything about the rules of court, civil procedure, the laws and rules of evidence, and the elements of a cause of action or defense, they have already lost. The only homeowners that win are those that enter the fight with the knowledge and intent to undermine the claim against it.
*
Blaming the system might be a good argument in politics; but it rarely produces a beneficial result in the courtroom. The investment banks have found a way to weaponize the system against homeowners, but homeowners have the ability to reverse that by attacking the foundation of the claim against them. This is not accomplished by making accusations that you have no way of proving. It is accomplished by asking the right question at the right time.
DID YOU LIKE THIS ARTICLE?

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

Click

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

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

MERS: It is not what they say, it is what they don’t say

As mortgagee of record, MERS holds mortgage liens. When MERS serves as mortgagee of record, it does so as a nominee of the corresponding Lender and that Lender’s successors and assigns. It is through this nominee relationship with the current Lender that any separation or splitting of the mortgage from the note is prevented. In other words, if the Lender is succeeded in interest by another party (e.g. through a merger or acquisition) or if the Lender transfers the note to another party (e.g. the note is sold and negotiated) then MERS will continue to act as mortgagee on behalf of (i.e. as a nominee of) that new Lender, which is a successor or assign of the previous Lender. It is only when MERS actually assigns the mortgage (i.e. a MERS Signing Officer executes an assignment of mortgage) that MERS no longer holds any interest in the mortgage and the lien is transferred.

see MERS_System_Procedures Manual

MERS never holds any mortgage liens. What they fail to say is that MERS never has any financial interest in any debt, note or mortgage. Under our current system of laws which has existed for centuries, it is impossible to transfer a lien without transferring the underlying debt. Such transfers are dubbed, in all courts, as legal nullities. That means for purposes of judicial review, the transfer does not exist. Therefore, MERS does not own, hold or otherwise have any interest in any mortgage or lien. It might serve as the agent for a party who could qualify as a lienholder. And that is exactly what every mortgage and deed of trust says.

It is true that if the underlying obligation was sold by the principal (“Lender”) for whom the agent (MERS) was acting, then MERS would no longer be the agent of the named principal (“lender”) but would rather be the agent of the transferee (“successor lender”). But there never is such a sale. Therefore, there is no successor lender.

And unless the originator was merged with or was acquired by the party claiming to be a successful lender, and the terms of that transaction included the transfer of ownership of underlying obligations from homeowners, there is no possibility that anyone can legally to be the principal in a relationship with MERS. But they do it anyway.

None of the companies pretending to be successor lenders ever paid for any obligation owed by any homeowner and therefore none of those companies has ever become the owner of those obligations, any legal debt, note or mortgage issued by the homeowner. The purpose of MERS is to blur the record rather than keep track of actual transactions. By showing “transfers” on MERS the investment banks are adding more layers of smoke and mirrors.

They say that no splitting of the note from the mortgage can occur as a result of the use of MERS. But they don’t say that the note has never been split from the mortgage. And more importantly, they don’t say anything about the payment value for the underlying obligation as required by article 9 section 203 of the uniform commercial code which has been adopted verbatim in all US jurisdictions.

They also don’t specify any duties of MERS, which consists of about four dozen employees who maintain a colony  of servers that are actually operated by “members.” That’s because MERS has no duties and does not perform any functions other than allowing members to make, change or remove entries of data on the servers. MERS is not a servicer in any sense of the word and the parties who are referred to as servicers are not servicers either. None of them collect money from homeowners, deposit them in an account opened by the company claiming to be the servicer, and then disperse the proceeds to an “investor.”

They are all sham entities — but if you are not in a position where you can submit legal discovery demands during litigation, all allegations concerning those sham entities will be taken as true and will be used as a foundation for the entry of a final judgment that either orders or permits the sale of the property.

You will likely never see a foreclosure proceeding in which the lawyers for the claimant alleges that the party named as plaintiff or beneficiary has paid value for the underlying obligation — which is a critical condition precedent to filing any enforcement action. It is all implied. While MERS talks about the note it never sees, handles, or knows anything about the note. but the house of cards falls down when you ask for the identity of the creditor who paid value for the underlying obligation and the manner in which that creditor granted authority to enforce the note.

What is left out of the discussion is that possession of the original note alone does not necessarily confirm the authority to enforce it. It might be presumed from the possession of the “original note” (which is most likely a fabrication), but the house of cards falls down when you ask for the identity of the creditor who paid value for the underlying application and the manner in which that creditor granted authority to enforce the note.

DID YOU LIKE THIS ARTICLE?

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

Click

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

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.
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