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Services include: Expert Consultation Services, Strategy, Qualified Written Requests, Case Review and Reports, Forensic Analysis Referrals, Discovery , Motions, Pleadings, Complaints to AF and CFPB, Title and Encumbrance Analysis, and Case Analysis. We coach lawyers and pro se litigants. ALL 50 STATES.

MISSION STATEMENT: I believe that the mortgage crisis has produced manifest evil and injustice in our society. Pretenders with more money and more lawyers than any consumer or borrower are stealing homes from homeowners while they undermine the investments by Pension Funds.

LivingLies is the vehicle for a collaborative movement to provide homeowners with sufficient forensic and legal resources to combat banks who are using fictitious names and entities to cover up their malfeasance.

We provide thousands of pages of free forms, articles and discussion of statutes, case precedent and policy on this site. On www.lendinglies.com I provide paid crucial analytic and presentation services that enable lawyers and homeowners to confront the lies in attempted foreclosures.

Ask about our CONSULTATION SERVICES and LITIGATION SUPPORT.

Educate Yourself and Your Lawyer: Read this Blog and Purchase Books & Services from www.lendinglies.com

Getting a Foreclosure Defense Lawyer is a Process

There are many good lawyers in all States. However most lawyers refuse to take engagements for foreclosure defense. They can be convinced otherwise if they receive a summary of the case that enables them to assess the likelihood of success and if they are convinced that they will receive full payment for their services. I do the preliminary work that enables a lawyer to assess each case to determine whether they want to accept the engagement.

Spoiler alert: lawyers are least likely to accept engagements if the case has (a) already been litigated and/or (b) if there have been multiple previous attorneys.

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GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
NOTE WE ARE STILL EXPERIENCING TECHNICAL ISSUES BETWEEN OUR STORE AND ONE OF OUR PAYPAL ACCOUNTS LINKED TO THE LENDINGLIES.COM STORE. IF YOU ENCOUNTER DIFFICULTIES COMPLETING YOUR ORDERS PLEASE EMAIL US AT NEILFGARFIELD@HOTMAIL.COM OR MAKE PAYMENT THROUGH PAYPAL AT OUR OTHER PAYPAL ACCOUNT GTCHONORS.LLBLOG@GMAIL.COM
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I do have a list of lawyers, but I do not know which ones are still active in representing homeowners. You need to look for an attorney with good trial experience. They don’t need to be knowledgeable about securitization or even foreclosures. But most lawyers are unwilling to do the research necessary to plan out a defense that has a likelihood of success — especially if they’re not paid to do so.

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So what happens is that homeowners come in to see a lawyer with only half the information they need, along with some theories off the internet and hope that the lawyer will “take a shot.” This brings into high relief the inequality or “asymmetry” of expectations. The homeowner wants a magic bullet and the lawyer knows there is no such thing. The prospective client is rarely able or willing to pay for the research and analysis that is necessary for the lawyer to determine if he or she wants to take the case. (The homeowner “expects” the lawyer to do all that work without payment).
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So the lawyer rejects the engagement right at the beginning and then people come to me asking for lawyers who “get it” or other good lawyers who will take their case. I have at times provided specific recommendations but that does not really address the problem presenting the homeowner, to wit: having a lawyer accept the engagement.
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The end result is that most cases either go uncontested, adding to the pile of cases supporting the myth that the cases are unwinnable. Or, the homeowner tries to go it alone,  and they are frequently outflanked by law firms (“foreclosure mills”) who know the laws of procedure and evidence and run rings around the homeowner even though there is no real claim and frequently no real claimant. Both add to the illusion that the case result is inevitable. It isn’t.
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The fact that there is no real claim and even that there is no real claimant is not going to produce a win for the homeowner unless the homeowner is represented by someone who knows trial law, and is being paid to do all the work including the critical phase of motion practice and discovery.
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This can get expensive and homeowners often determine that “it isn’t worth it.” That is a personal decision but I fear that many who make it are not seeing clearly. The home is probably the biggest investment of their lives and there is a clear opportunity to retain it and repel attacks on it by lawyers representing fictitious clients with fictitious claims.
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Despite the wrongful nature of most foreclosure claims there is absolutely no guarantees of success and even less so if homeowners wait until the process is nearly complete before engaging counsel. Although I have not studied it scientifically my anecdotal observations of thousands of cases, defense strategies and tactics undertaken at the beginning of any foreclosure, if pursued vigorously and persistently, produce a win rate of over 65% even with judges who ordinarily rule for the foreclosure mills. 

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There are very few lawyers who have the time or inclination to pursue the subject academically like I do. So I support my efforts by preparing a case analysis for each case that highlights the strongest possible defense strategies from which the prospective lawyer can choose for the thrust of the actual defense. A lawyer can the scan the analysis in minutes without charging a prospective client and then decide whether he or she should accept the engagement. All other methods of finding lawyers are at best hit and miss.
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This often conflicts with another expectation of prospective clients. They expect me to produce a magic bullet that will end their distress. There is no such thing. Winning means fighting it out on the battlefield of the courtroom — not merely producing a report or statement that in your mind ends the matter. I can prepare the battle plan but I do not engage in battle anymore except in rare cases.
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Bottom Line: if you are not willing and able to fight for it, it isn’t going to happen.

Investors Were Not Injured By Non Payment from Homeowners. They Were Injured by Non Payment from Investment Banks

The trap door is thinking that investors were hurt by borrowers failing to make payments when in fact they were injured by brokerage companies not paying them regardless of how much money was being received and created. This trap door inevitably leads one into thinking that the money proceeds from a forced sale of property in foreclosure are being paid to investors. That is just not true.

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GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
NOTE WE ARE STILL EXPERIENCING TECHNICAL ISSUES BETWEEN OUR STORE AND ONE OF OUR PAYPAL ACCOUNTS LINKED TO THE LENDINGLIES.COM STORE. IF YOU ENCOUNTER DIFFICULTIES COMPLETING YOUR ORDERS PLEASE EMAIL US AT NEILFGARFIELD@HOTMAIL.COM OR MAKE PAYMENT THROUGH PAYPAL AT OUR OTHER PAYPAL ACCOUNT GTCHONORS.LLBLOG@GMAIL.COM
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Exchange between me and fairly knowledgeable client:

Client: “But if investors put up the money then they would be the injured party if borrowers don’t pay, or at least if things were normal.”

From me:

Incorrect. Investors were injured by  the failure of brokerage firms to make payments to them that were purely optional. Investors were not injured by failure of borrowers to pay their mortgage payments as defined in the promissory note.

At the option of the investment bank, the investors who paid value for the certificates issued by the investment bank, continue to receive payments. Those payments come from a reserve pool of money funded entirely by the investors initial purchase of certificates (but they are labeled “Servicer advances”).

You are falling through the trap door that the banks and their lawyers have created. Investors did not put up money to purchase your loan or acquire it or originate your loan. They had no legal part in that unless a judge were to enter an order stating that while the form of the transaction says they had nothing to do with your loan, the investors were nonetheless substantively the “lenders.” The banks and the investors would argue against that since it would make investors liable for lending and servicing violations.

You are presuming something that the banks want you to presume. The truth is that the investors were told that they would be paid by the brokerage firm that set up the plan of what they called “securitization.”

The promise received by investors was from the brokerage firm not the borrower. The money on deposit with the brokerage firm was used to originate or acquire loans as a cost of doing business, to wit: the business of issuing and trading in derivative securities to which neither the investors nor “borrowers” were parties and therefore received no compensation despite the fact that without them none of those trades could have taken place.

The promise (certificate or mortgage bond) was issued in the name of a “trust” that at best was inchoate” under law (i.e., “sleeping”). The trust name was merely a business name under which the brokerage firm was doing business. The promise was not secured by any interest in the debt, note or mortgage on any loan. In fact, at the time of investment there were no loans in any portfolio that were the subject of the investment. There was a promise to aggregate such a portfolio and the list of loans attached to the prospectus is subject to the disclaimer that it is not the real list but rather an example of the kind of data the investors will see when the offering of certificates is complete.

The certificates themselves do not convey and right, title or interest to the debt, note or mortgage on any loan. The investors merely hold an unsecured promise to pay where the promissor is the brokerage firm (Investment bank) and the amount of payments to be received by investors are indexed on the data for an aggregate of loans; but such payments are entirely dependent upon the sole discretion of the investment bank (Brokerage firm) and the performance of the index — i.e., the performance of borrowers.

Investors thus receive money as long as the investment bank wants them to receive money regardless of actual performance of loans. The non performance of borrowers represents an excuse for the investment bank to stop paying the entire amount of their promise, if the managers of the investment bank so choose.

But since the investment bank (brokerage firm) was using money deposited on account the net result is that the investors paid value for the origination or acquisition of the debt but never got to own it under current law.

And the investment bank briefly became the “owner” of the debt without having actually paid for it, and then created a “sale” at its trading desk in which the loans were “sold” to the “trust” at an enormous premium (second tier yield spread premium) from the amount that was actually loaned to borrowers at much higher interest rates than the amount demanded by the investors. 

Bottom Line: Under current law in all jurisdictions nobody qualifies as the owner of the debt by reason of having paid for it because those two functions were split by the investment bank.

The value was paid by investors who did not receive ownership of the debt. The ownership of the debt as in the hands of the brokerage firm that started the securitization scheme and then transferred to itself using the name of the fictional trust. Hence the brokerage firm, directly or indirectly continued to “own” the debt without having actually paid for it. This is legally impossible under current law.

Under current law, nobody can claim to own or enforce a debt without having paid value for it. A transfer of rights to a mortgage is a legal nullity unless there is a concurrent payment of value for the debt. The only possible claimant in a court of equity is the investment bank, but they continue to hide behind multiple layers of sham conduits who actually have no contractual or other relationship with the investment bank. All such “securitized” loans are therefore orphans under current law where the debt, note and mortgage cannot be legally enforced.

The only way they have been enforced has the acceptance by the courts of erroneous presumptions that effectively reconstitute the debt, note and mortgage out of the prior transactions that split it all up. This produced the opportunity for profits that were far in excess of the loan itself which was viewed by the investment bank as simply a cost of doing business rather than an actual loan. Besides violating current law under the Uniform Commercial Code it also violates public policy as explicitly enunciated under the Federal Truth in Lending Act and public policy stated in various state laws prohibiting deceptive lending and servicing practices.

Those excessive profits should, in my opinion, be the subject of reallocation that includes the investors and borrowers without whom those profits could not exist. These are the actions for disgorgement and recoupment to which I have referred elsewhere on this blog. But in order to have real teeth I believe it is necessary to join the investment banks who had a role in the claimed “securitization.”

In affirmative defenses you can name a third party but you must express the defense as something for which the actual named claimant is vicariously accountable. Otherwise you need to file a counterclaim, the downside of which is that many such claims are barred by the statute of limitations whereas affirmative defenses are not usually subject to the statute of limitations.

The reason you can’t get a straight answer to discovery is that ownership and payment have been split between two entirely different parties. Yet current law demands that the enforcing party be (a) the owner of the debt, note and mortgage and (b) the party who paid value for the loan. In most situations involving claims of securitization that requirement cannot and is not meant to be fulfilled.

Clearly  changes in the law are required to allow for securitizations as practiced. But in order to do that the laws regarding disclosures to investors and borrowers must get far more specific and rigorous so that freer market forces can apply. With transparency market corrections for excessive or even unconscionable transactions are possible — allowing both borrowers and investors to bargain for a share of the bounty created by securitization arising from the investment of investors and borrowers.

Current law supports disgorgement of such profits because they were not disclosed. But current law fails to identify such “trading profits” as arising from the the actual transaction with investors, on one hand, and the borrowers on the other hand. This might be accomplished in the courts.

But a far better alternative is to level the playing field with clearly worded statutes that prevent what had been merely intermediaries from draining of money and other value from the only two real parties in interest as defined by both the single transaction doctrine and the step transaction doctrine.

Banks and Foreclosure Mills Stepping Up Attacks on LivingLies Through Proxies

Apparently my most recent posts have produced a flurry of activity from proxies who are supported by investment banks acting through their conduit Servicers and Foreclosure Mills. They are aiming to discredit my academic and practical research and analysis into the securitization of debt and the impact on foreclosures of real property.

So the main point is that nobody with credentials equal to or exceeding my own has come out and said or explained why I am wrong about anything I have written. Nobody ever, despite the fact that I have filed declarations in hundreds of cases. If I was wrong it would seem that the obvious strategy would be to show that I was wrong rather than calling me names. Another obvious strategy would be to explain how I had duped senior judges into ruling in favor of borrowers. But that hasn’t come up either.

If you have any actual questions about the veracity of any allegations against me or LivingLies please write to me at neilfgarfield@hotmail.com. Most of the “new” stories merely recycle old stories, some of which may have a grain of truth as to past employees. But there are a few new allegations, or at least to new to my eye. Some of you are forwarding them to me.

As the old saying goes, the more flack you get the more certain you can be that you are over the target.

My latest salvo encouraging lawyers and homeowners to simply demand answers to questions and demand documents for production to show actual transactions where money exchanged hands seems to have disturbed a lot of people. While the untitled and frequently unidentified authors use the word “fraud,” they do not point to any benefit we received on account of such encouragement. On the contrary, the benefits flow entirely to the lawyers and homeowners who use such strategies.

Add to that my suggestion that homeowners might consider demanding disgorgement of borrower payments and disgorgement of undisclosed compensation (arising from the commencement of the loan) as an affirmative defense in any judicial foreclosure action. Back in 2008 I was told point blank by an attorney for a foreclosure mill that this was my most “obnoxious” allegation.

While the question is not completely settled, it is apparently true in most courts that the statute of limitations does not bar an affirmative defense for disgorgement and set off up to the amount claimed in the foreclosure. However, a separate claim in the form of a counterclaim or collateral lawsuit would most likely be subject to the statute of limitations.

Also there is my support of briefs that are being filed with the Supreme Court of the United States seeking to prevent any court from using “interpretation” to simply rewrite the TILA Rescission law despite the clear wording of the statute and the ultra clear wording written by Justice Scalia, in a unanimous SCOTUS decision in Jesinoski.

I get that if TILA rescission were taken seriously it would undermine the value of mortgage “bonds” (certificates). I just don’t think that complaining loudly about your toys being taken away should change the fact that they are toxic and you shouldn’t be allowed to play with them.

In any event, I am pleased at the attention the banks are giving me as it merely highlights the importance of my work, which in turn might hasten the day when the banks, the servicers and the foreclosure mills are brought to justice. This is coming from people who hide behind proxies on the internet and who commit fraud every time they make a claim for collection or enforcement of a mortgage loan.

Don’t worry, they won’t stop me.

Bill Paatalo Has Proof of Chase Bank Treachery

You’ll be hearing a lot more about this on the Radio Show next week with Charles Marshall and Bill Paatalo.

Bill is a private investigator who I compare to a dog with a bone. He never lets go. After years of trying he finally came up with extrinsic proof that the “WAMU” loans claimed to be owned by Chase as a result of the Purchase and Assumption Agreement were neither owned by WAMU nor by Chase as “successor.” Neither the FDIC nor the U.S. Trustee in the WAMU bankruptcy had any control over those loans since they were not in the estate of the entity that went bankrupt or was forced into receivership.

All the documents that were produced by Chase were therefore entirely false, fabricated and fraudulent. Time to write your state legislators and congressional representatives. Until this fraud stops, the economy will continue to hemorrhage money that is badly needed to avoid another recession.

see https://bpinvestigativeagency.com/smoking-gun-proof-that-jpmorgan-chase-never-acquired-beneficial-interest-in-my-wamu-loan-through-the-fdic/

Close examination of Lehman, Aurora, Bear Stearns, Indymac, Wachovia, Wells Fargo, Bank of America and Countrywide and others will reveal the exact same thing. All those foreclosures current, past and future are providing profits to brokerage firms or banks that will never be turned over the the investors who funded the origination or acquisition of the loans.

Theft is not capitalism. The Wall Street firms who engineered this scheme were not capitalists. The capitalists were the investors who advanced the money and the borrowers who signed documents and put up their homes as collateral. Capitalism only works in free markets. Free markets means that there are opposing forces. If information is withheld under circumstances that is is virtually impossible to decipher the true nature of a transaction then there can be no opposing market forces and capitalism fails.

All over the word, starting in the late 1990’s, people, institutions and governmental units have been screwed. But they don’t really understand how it was done and therefore their lawyers have not devised a viable real action to pursue remedies for what is in the final analysis, the greatest economic crime in human history. I think the answer might be disgorgement.

It is my opinion that to this day the original investors still do not fully understand that they are probably entitled to disgorgement of trillions of dollars from Wall Street firms that converted investor money to firm money. It is also my opinion that borrowers are entitled to receive some portion of the disgorgement of compensation and profits arising from origination or acquisition of their loans that were never disclosed.

Why Are We Still Dealing with Aurora and Lehman?

Keep in mind that Aurora is a subsidiary of Lehman. They are both in Bankruptcy but are being kept technically alive in BKR court for the sole purpose of making actions appear to be legitimate attempts to collect a debt.

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GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
NOTE WE ARE STILL EXPERIENCING TECHNICAL ISSUES BETWEEN OUR STORE AND ONE OF OUR PAYPAL ACCOUNTS LINKED TO THE LENDINGLIES.COM STORE. IF YOU ENCOUNTER DIFFICULTIES COMPLETING YOUR ORDERS PLEASE EMAIL US AT NEILFGARFIELD@HOTMAIL.COM OR MAKE PAYMENT THROUGH PAYPAL AT OUR OTHER PAYPAL ACCOUNT GTCHONORS.LLBLOG@GMAIL.COM
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Aurora was “employed” by Lehman who had merely used money on deposit from investors to fund the loans. Lehman was theoretically then the party who owned the debt by reason of having paid for it. In turn, according to the certificates purchased by investors, Lehman owed a stream of revenue payable to investors that was indexed on a changing portfolio of loans that were poorly underwritten because nobody cared whether they performed or not.
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By selling its own promise to pay in lieu of the borrower’s promise to pay they secured the funds to fund what appeared to be a loan. The profit incentive was in other transactions, whether real or fake, that produced enormous profits far exceeding the loan. And yet millions of foreclosure actions have been filed “on behalf of certificate holders.” The holders of the certificates are never identified and the certificates are never described because there is no conveyance of any right, title or interest in any loan. 
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The borrower thought this was a loan transaction for good reason. But, as I have carefully alluded in the past, the loan was not actually a loan from the Lehman perspective. The money for the “loan” was merely a cost of doing business to make money in the securitization markets. All attempts to enforce the loan through foreclosure were veiled attempts at receiving more revenue, since Lehman, within 30 days of funding the loan, had pocketed far more than the principal amount of the loan from several tiers of investors.
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So in dealing with Aurora or Lehman keep in mind that that neither of them has the loan or the servicing rights on their bankruptcy schedules. Lawyers simply use inferences and legal presumptions to create an illusion despite the fact that neither of them has any present right, title or interest in any particular loan.
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Thus practitioners and pro se litigants should at all times object to any such implied ownership or administrative rights since none are supported by actual facts.
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For more information on the amount of money taken in by Lehman (and other brokerage houses) use the search engine on this blog. But you can start with the second  tier yield spread premium (YSP). In oversimplified terms, Lehman was promising a 5% return to investors on the amount they invested while originating “loan” transactions at a much higher rate to borrowers. In this example the blended rate signed for by “borrowers” is 10%.
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Hence Lehman could take in $1,000 from an investor and only lend out $500, pocketing the difference. In dollars, 5% of $1,000 is the same as 10% of $500. The end result is that Lehman immediately gets paid all of the loan amount plus the amount as as profit. The difference is shown as a “trading profit.” On its own books of account the loan ceases to be carried as an asset subject to a reserve for bad debt. The net legal and actual result is that neither Lehman nor its investors are owners of the debt. The debt has legally vanished.
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The courts won’t accept this fact. So they allow into evidence fictitious documents reciting nonexistent facts about transactions that never happened in order to allow the brokerage firms to use conduits to reconstitute the apparent existence of the debt and their right to enforce it — all without ever alleging or proving that without such enforcement any of them would have lost any money.
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The fine paid on behalf of Aurora, which has virtually no assets left, is based upon allegations of misconduct all associated with “underwriting” loans for the purpose of making the loans, not getting repaid by the borrower.
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Only Aurora and Lehman knew that repayment was irrelevant except as corroboration of the lie they had told investors — that this was entirely a diversification of risk strategy for conventional and well-underwritten loans in accordance with industry standards.
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And of course there was the lie they told borrowers through their conduit “originators” — that the lender had a risk of loss and therefore would not lend money that couldn’t or wouldn’t get repaid.
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As long as most borrowers kept making payments to people that were not entitled to collect such payments they were tacitly admitting to the fact that they owed payments to such parties even though they didn’t. The strategy was brilliant even if perfidious.
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The reason the fine was paid on behalf of Aurora is that it corroborates the false narrative that Aurora or Lehman were the true owners of the debt and that any actions taken to enforce the “loan” were valid and authorized. They weren’t authorized. And the proceeds of such collection and enforcement schemes never went to investors who had actually supplied the capital required to originate or acquire the loan. All such schemes were merely disguised efforts to obtain more revenue. This left the investors and the borrowers holding the proverbial bag.
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Unfortunately the political decision from the top down was to protect the banks rather than the investors and homeowners. But aggressive and persistent defense of foreclosure actions in court usually results in a satisfactory result for the homeowner.

Tonight! How to Get Into the Judge’s Head 6PM EST 3PM PST

Thursdays LIVE! Click in to the Neil Garfield Show

Tonight’s Show Hosted by Neil Garfield, Esq.

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

A typical seasoned judge in a community with dense demographics might have been the primary judge or at least a participating or covering judge in about 10,000 foreclosure cases before he hears anything about your case.

In each case the judge renders multiple rulings, opinions and judgment. On average it’s probably about 5 rulings (orders) per case because nearly all cases are not contested by homeowners. That’s around 50,000 orders by that one judge. The odds of any judge saying he or she was wrong 50,000 times is at best delusional.

The odds of any judge entering the courtroom without prior opinions and biases is zero. Period. They are human and if you want something else go to a planet where robots do everything including all the thinking.

So how do I win and how do other attorneys win in foreclosure cases. More importantly if you are a homeowner who is facing foreclosure or who has been subject to foreclosure, how do you plead a claim or defense that ends up being considered credible to a judge who walks into the courtroom believing that he or she has already ruled on this matter 50,000 times and he or she wasn’t wrong.

Start with hiring a trial lawyer.

Tonight I will discuss what I think is on the Judge’s mind and how to gain entry to his or her mindset such that you can persuade the Judge to see things your way — or at least enough to rule in your favor.

Post Judgment Assignments Continue to Baffle Homeowners and Foreclosure Defense Lawyers

Charles Koppa in San Diego was the first person  to point out to me that the activities after even a nonjudicial sale told the real story about the what was going on. That was back in 2008. Lately I have been getting questions relating to post-sale or post judgment activities.

There is a doctrine that says that upon judgment in a judicial state or upon sale in a nonjudicial state, the mortgage or deed of trust is merged into the judgment or sale respectively.

The most recent questions I have received suggest that perhaps the debt, note and mortgage or deed of trust is extinguished by the judgment or sale. They are not. Merger is different from invalidation or extinguishment. And vacating a judgment or sale merely restores the parties back to where they were before the judgment or sale.

But sloppy orders from the bench sometimes creates doubt or uncertainty as to the rights and duties of the parties.

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GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================

Here is the answer to a recent question posed by a reader:

The law does not prevent someone from executing an assignment of mortgage. The question is whether such an assignment has any effect, and if so, what is that effect?

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 This question appears to be coming up with increasing frequency and I am ignorant of the reasons why this is suddenly rearing its head.
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First I will say that any attempt to position yourself such that the judgment eliminated the note and mortgage and therefore you are exempt from writ of possession or liability on the debt is a false position and would undermine your credibility in court, in my opinion. If the Judgment is vacated it merely returns the parties to the position they were in before the judgment was entered. Neither the mortgage nor note nor debt have been extinguished in such circumstances.
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Second the entry of a final judgment of foreclosure has the effect of replacing the rights under the mortgage and note with rights arising from entry of the final judgment. In plain language this means that once Judgment is entered, the forced sale of the property may be scheduled and conducted and a new deed upon such sale has the effect of transferring title from the homeowner to the successful bidder at auction.
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The successful bidder can be and often is the party named as the claimant in the foreclosure action. Instead of bidding with cash, the bid is normally a “credit bid” which means that the claimant in the successful foreclosure case uses the money award in the final judgment in place of cash.
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Many different legal presumptions arise from each step of the foreclosure process.
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There can be an “assignment” after foreclosure judgment has been entered but it is not technically an assignment of mortgage which is generally treated as merged into the final judgment of foreclosure. A document that purports to be an assignment of mortgage post-judgment would probably be ineffective to assign the mortgage which no longer legally exists, even though it remains in the title record. It would also be ineffective to assign the debt unless a court chose to treat the assignment as an assignment of rights under the final judgment of foreclosure.
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The law does not prevent someone from executing an assignment of rights under the final judgment. But like all documents it must be both facially and actually valid. If it is facially valid then it is the burden of the homeowner to show that it actually had no validity. It has no validity if there was no completion of the transaction as required by law. By “the transaction” I mean the transaction implied by the assignment. No reasonable person would give up rights to a mortgage worth hundreds of thousands of dollars without payment.
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As with most documents arising from claims of “securitized” loans there is no actual transaction in which money exchanged hands because the original consideration came from a third party outside of the entire chain of title. This the only party entitled to receive payment, under current law, would be the last party to pay value.
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While I am not aware of any specific case law that deals with assignment of bidding rights or any other post judgment assignments, it seems likely that such an assignment would be required to meet the same test as an assignment of mortgage, to wit: that the assignment is a legal nullity (i.e., it never happened, it has no legal effect) unless there was a concurrent financial transaction in which value was paid for the debt.

This is definitely the requirement under current law in all U.S. jurisdictions. While the courts have twisted their interpretations beyond all recognition to make it seem like the requirement of payment of value has been satisfied, this can only be done through legal presumptions.

And the legal presumptions can be rebutted.

The key strategy for revealing the falsity of the presumption is discovery where the homeowner borrower asks the simple questions about the dates and parties to transaction in which value was paid for the debt, note or mortgage.

Generally speaking you will never see answer to such questions because if they did answer they would be admitting that nobody in the chain of title ever paid value as required by law. And generally speaking there are very few occasions where the court won’t order them to answer it. And generally speaking there are very few occasions where they don’t violate the court order which opens the door to inferences and presumptions in favor of the homeowner’s defensive position.

7th Circuit Affirms $582,000 Punitive Damages Against Ocwen

“We are not sure how many human errors a company like Ocwen gets before a jury can reasonably infer a conscious disregard of a person’s rights, but we are certain Ocwen passed it,” Circuit Judge Amy St. Eve wrote, joined by Circuit Judges William Bauer and Michael Brennan. [e.s.]

Editorial Note: Any lawyer who thinks these cases cannot be won and cannot be profitable for the lawyer and the client is simply not paying attention to the facts. While the size of the award was slashed to the amount of compensatory damages awarded by the jury, the larger point is that the assumption that punitive damages will not be granted is just plain wrong. A lawyer on full contingency in this case would have received over $400,000 in fees.

see Ocwen’s Attempt to Eliminate Punitive damages Rejected

From Westlaw:

The jury awarded Saccameno $500,000 in compensatory damages under the FDCPA and RESPA. It awarded another $82,000 in compensatory and $3 million in punitive damages under ICFA.
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On appeal, Ocwen challenged only the punitive award, arguing that the 37:1 ratio of punitive to compensatory damages under ICFA was so large that it constituted a deprivation of property without due process of law.
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Saccameno said the true ratio was 5:1, based on the aggregate compensatory award. The 7th Circuit said that under either calculation, $3 million was too much.
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The Supreme Court has warned that punitive awards generally should not exceed a “single-digit” multiple of compensatory damages, and if the compensatory award is “substantial,” a 1:1 ratio might be “the outermost limit.”
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Reducing the punitive award to $582,000 provided a 1:1 ratio to the “considerable compensatory award” under Saccameno’s aggregate approach and a single-digit, 7:1 ratio under Ocwen’s “claim-by-claim” approach, the 7th Circuit concluded.
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The case is Monette Saccameno v. U.S. Bank N.A., trustee and Ocwen Loan Servicing LLC, 7th U.S. Circuit Court of Appeals, No. 19-1569.
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For Saccameno: Nick Wooten and Mohammed Badwan of Sulaiman Law Group
For Ocwen: Anton Metlitsky and Ephraim McDowell of O’Melveny & Myers
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Practice Note: Under the peculiar reasoning of the Supreme Court it might be tactically better to seek and obtain nominal damages then seek a high amount of punitive damages without the constraint of measurement against a “substantial” award of compensatory damages.
*
Also suits against the trustees and possibly the stockbrokers (“investment banks”) might also yield better results inasmuch as the truth about their behavior is more egregious, if you can prove it. At least Ocwen was pretending to do something real.
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And remember what Eric Holder (former U.S. Attorney General) said: “Sue the individuals.”

How securitization affects defense strategy in securitization cases.

A new set of lawyers is coming into the marketplace and they smell blood. They are seeking guidance and they are up for making money and winning cases. Here is what I just wrote to one of them who is “boots on the ground” in California in a case in which I am the lead “Consultant”.

I would only add that nearly all cases are actually securitization cases even if they are not filed in the name of a trust.

 

I understand you are favorably disposed to defense of foreclosures and you are in the steep learning curve associated with most foreclosures in which sales of paper instruments have occurred in the secondary market to support claims of securitization. The essential flaw in those paper documents is that the debt never moves. Hence the documents refer to transactions that never existed. All such documents are fabricated strictly for the purposes of foreclosure and are not used for reporting to any regulatory authority because that would subject the signor to charges of perjury.

I would be happy to answer your questions if you want to set up a Q&A. It will be helpful for me to gauge your comfort zone because regardless of what I write, the lawyer on the ground must feel it in order to be persuasive. If you don’t believe it neither will the judge. So I like feedback from the local lawyer as to the wording and concepts with which they are comfortable. And as I have specifically and emphatically communicated to Calhoun and Ennis, even in the best circumstances there is at least a 1 in 3 chance of losing. And as I have elaborated to them, this is not the best of cases primarily but not solely because of the passage of time.

For starters the defense premise is “Counterintuitive” (as phrased by Reynaldo Reyes, VP Asset Management of Deutsche Bank), which is another way of saying unbelievable. Yet it is true. So the purpose and strategy and tactics are directed at only going so far as necessary to show that the basic fundamental requirements of foreclosure have not been met — not to prove that the entire securitization scheme is a Ponzi scheme (which it was and remains).

We must be extra careful with labels. Stockbrokers masquerading as “investment banks” and acting through conduits and attorneys (who actually only represent the conduits) often set the stage with labels that are presumed to be true. Most of them are untrue. Take Mr. Reyes for example, who is indeed a VP of Deutsche Bank but he has no assets to manage because none of the trusts own any property or mortgage debts. By accepting him as an asset manager you might be accepting that there are trust assets including the subject loan. That in turn would be acknowledgement that the trust exists and perhaps that the subject loan was entrusted to the “trustee.” And that could be used as an admission that the trust exists when it actually doesn’t.

The actual legal status of the named trust is one of two things.

(1) a fictitious name by which stockbrokers do business with investors and then do  business with the courts in order to initiate illegal foreclosure proceedings in order to steal the house and the proceeds from the only real parties in interest — the investors who advanced the funds and the borrowers whose house they are taking without any intention of using sale proceeds to pay the investors.

(2) an actual trust (you must refer only to the actual trust agreement and not the pooling and servicing agreement that only implies the existence of a trust) whose sole purpose is to hold “bare naked title” to the mortgage for  the benefit of the stockbroker doing business under the name of the trust and who has divested itself of all or nearly all of the ownership and risks attendant to ownership of the debt.

Yes it is and was always intended to be as complicated as possible. Wall Street learned a long time ago that the more complicated the financial instrument the more everyone will depend upon Wall Street to tell them what is means. Even judges do it.

So our strategy is as follows: for purposes of planning start with the premise that the current claimant has no direct or indirect connection to the debt, note or mortgage (except for apparently facially valid documents from which rebuttable presumptions arise). Then flip to what is required for a valid foreclosure.

Well first of all it must be a proceeding in which the object and the result is restitution of an unpaid debt. If the named claimant does not exist and/or does not own the debt by reason of having paid value for it then it has suffered no injury and there is no claim.

If the lawyers for the named claimant say that it is authorized to collect on behalf of such an entity then that entity must be identified for the court and the homeowner to know that a claim is being pursued to pay down the debt. Keep in mind that the lawyers represent the conduits (servicers) and don’t really maintain any retainer agreement or attorney client relationship with the named claimant.

If it is not being used to pay down the debt the only other option is that this is an illegal revenue scheme that weaponized the foreclosure process — but we don’t say that in today’s judicial climate. At least not yet.

We don’t actually prove that this is a scheme to generate more ill-gotten revenue, which is exactly what it is, because that would raise fears in the judge that such a judgment might undermine a large part of the American financial sector which it would.  We gradually educate the judge to the point where he/she draws the conclusion and then skirts around it in a final judgment that recites all the deficiencies in the case brought by the named claimant and the documents, their fabrication, backdating etc.

In this case instead of damages that are probably barred by the statute of limitations we will pursue disgorgement in the theory that the pornographic profits, fees and commissions arising from origination of the loan were not disclosed pursuant to the disclosure requirements under state and Federal statutes, which is public policy. We won’t say that on average $12 in revenue was generated from each dollar loaned. But we will either prove it or raise the inference because they refuse to answer questions in discovery even after being ordered to do so by the court.

Once the court gets the idea that this was not a traditional loan situation and that the players have all been paid several times over, then the bias about not letting the borrower get away with a free house starts to fade.

Get the idea?

Answering the Shell Game

Most of the questions I get come from lawyers and homeowners who are totally confused by the array of names of companies that appear, disappeared and replaced by lawyers operating under instructions from command central — a group of lawyers who oversee the foreclosures of loans claimed to be securitized. They are the ones who give the orders to “servicers” and “foreclosure mills.”

The goal is to force the sale of homes and obtain the proceeds of sale for the benefit and account of a stockbroker who initiated a scheme of “securitization.”

Everything that happens in correspondence, statements and enforcement actions is specifically designed to make lawyers, homeowners and judges think that is not the case. Everything is designed to create the false impression that the parties involved have every legal right to originate, process and enforce residential loans when in fact no such authority exists.

The foreclosure process is just one step in many that results in unconscionable profits, fees and commissions distributed to a multitude of players whose livelihood depends upon successfully duping the courts into allowing foreclosure despite the fact that the money from the forced sale will never be paid to the investors who paid for the debt.

One such question came in from a reader regarding BONY Mellon as trustee of a supposedly REMIC trust. As with all things in the era of securitization fail (see Adam Levitin) even that is false. An entity that does not serve as a pass through vehicle for payment of principal and interest on residential loans is not a Real Estate Mortgage Investment Conduit — so it isn’t a REMIC. A name that includes the word “trust” in it without a trust agreement in which something is entrusted to the “trustee” is not a trust.

So BONY Mellon is simply renting its name out for use by stockbrokers who call themselves “investment banks” in order to create the illusion of an institutional loan when nothing could be further from the truth. With only a few exceptions the same statement applies to all entities named as “trustees” of “REMIC” “trusts”.

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GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================

Here is my reply to the reader:

They are playing a shell game and that is  what you should say:

  • None of the BONY Mellon entities ever owned or paid for the debt, note or mortgage.
  • None of the BONY Mellon entities ever served as trustee for the benefit of certificate holders
  • None of the certificate holders ever received a conveyance of ownership in the debt, note or mortgage. The assignment is always void (see below).
  • None of the certificate holders hold any equitable interest in the debt, note or mortgage because they expressly waived any such interest.
  • None of the BONY Mellon entities ever received your loan to hold in trust for anyone.
  • The assignment of bare naked title without the debt is a legal nullity. The trust agreement says that BONY holds bare naked legal title for the investment bank, but it does not have legal title because the debt was not also transferred.
  • The appearance and disappearance of technical legal entities occurs for the sole purpose of creating the illusion of business transactions that never occurred.
  • None of the BONY Mellon entities will ever receive the proceeds of a forced sale of property in this case.
  • None of the BONY Mellon entities have ever received the proceeds of forced sale of any property related to the subject “trust” or trust name.

Confronting the Games Played By Stockbrokers Through Their Attorneys in Foreclosures

The first order of business is to recognize two things — (1) that it is a stockbroker who is the actual party foreclosing the mortgage and (2) that the stockbroker is NOT seeking restitution for an unpaid debt — all of which means that it isn’t really a foreclosure. It is a scheme to generate revenue because the investors, who put up the money, will never see the proceeds of sale in a foreclosure.

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

GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================

So I recently responded to a situation that combined all the worst attributes of a fraudulent and wrongful foreclosure. Here is what I said:

From what you have described, you are under a deadline to file something to oppose confirmation of the sale of the property. Failure to do so timely could result in legal presumption against you that might be conclusive. Even if the sale was wrong, the court might well confirm the sale. Such an order could be used by your opposition as the basis for saying that the matter had already been litigated to conclusion and that you were barred from bringing it up again. You should seek advice from local Counsel.
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The fact that you lost at summary judgment falls into the same category. While there is no question in my mind that the foreclosure was probably fraudulent and wrongful, laws of procedure are aimed at producing finality to any legal dispute. To put it simply, the uphill battle you were facing just became more steep.
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You might have a claim against the “Foreclosure defense company,” but without more information I could not comment further.
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The reason why I firmly believe that further investigation will reveal a fraudulent and wrongful foreclosure is that I am very well acquainted with the players that you have indicated have been involved in the chain of title or chain of servicing.
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While Countrywide Home Loans may have technically qualified as a lender, it rarely acted as such. The only loans it gave were to specific individuals who had value to the securitization effort of stockbrokers who refer to themselves as investment Banks. The real function of Countrywide was as an aggregator of data.
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People often confuse the terms used by the stockbrokers resulting in the erroneous conclusion that Countrywide was buying loans and then grouping them into portfolios that would be used for securitization. This is untrue. But it is always implied in everything that the players do when they are pursuing foreclosure.
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That means that the loans were actually funded through Countrywide as a conduit, not as a lender. Investors either deposited or paid money to the stock brokers for unsecured certificates promising a stream of revenue in monthly or quarterly payments. The money from investors was then funneled through Countrywide, or one of its Originators, to the closing table of each loan. This process insulated both the investors and the stockbroker from claims of violation of lending laws because they were not mentioned as lenders. [This does not actually insulate them but it raises the presumption that they were not lenders.]

This generally means that using the name of Countrywide Home Loans on the note or mortgage was incorrect, since only the party who owns the debt because they paid for it should be listed as payee on the promissory note or mortgagee on the deed of mortgage or beneficiary under a deed of trust. A purported transfer of the mortgage without a concurrent transaction in which the debt was purchased for value is a legal nullity in all U.S. jurisdictions. Thus your chain of title is probably not only defective, but fraudulent.

Any effort aimed at collection, processing or enforcement of the loan by a party with no right to receive the proceeds is actually scheme to generate revenue rather than an action seeking restitution for an unpaid debt — unless the action is brought by an entity who has a contractual right to represent the owner of the debt because they had paid for the debt.

The issue with Chase Bank and Washington Mutual is even more bizarre. The business plan of Washington Mutual, which did start out as an actual lender, evolved into being merely an “originator” which is to say that they were merely a conduit, like Countrywide, for funds that were channeled through stock brokers to the loan closing table.

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Technically speaking, all the loans originated by Washington Mutual after 2001 were sold into the secondary Market to support claims of securitization. In plain language this means that even if Washington Mutual technically owned the loan at some point, it immediately divested itself of all ownership interest in the loan. But it frequently retained the rights to service loan in exchange for a fee.
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At the time that Washington Mutual went bankrupt, its ownership of loans was virtually zero, which was reflected in the purchase and assumption agreement that was executed on September 25th 2008. The consideration was 0. Nonetheless Chase Bank claimed ownership of virtually all loans originated by Washington Mutual. This amounted to about $600 billion in loans.
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This claim was false. it was not even facially valid because there had not been any assignments of mortgage recorded. Later Chase Bank claimed power of attorney from the FDIC who had taken over Washington Mutual in receivership. That claim was also false. But it is likely that Chase Bank may have been the successor to the servicing business of Washington Mutual.
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The continued migration of your loan, or the servicing of your loan, to various entities indicates two things: first that the players wanted to create layers of paper documents that gave the erroneous impression that title was valid and that various transactions had occurred in which money had exchanged hands. This was totally untrue. Second, they are obviously aware that their title chain is defective.
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Your problem consists of two issues confronting you. The first is that you must rebut the legal presumptions that were used to obtain judgement against you. The second is that you need to undo the damage that has occurred procedurally in order to be able to undercut the presumptions that were used to obtain judgement against you. This will no doubt require the assistance of local counsel. There are many procedural strategies and tactics that might be able to be used.
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We assist Pro Se litigants and their attorneys and preparing the necessary motions. We do not do emergencies. So if there is a short-term deadlines you need to look to your local Counsel for assistance.
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NOTE: we are having some technical issues with one of our accounts on PayPal which is disrupting the ability of clients to automatically order services and pay for them. If you encounter any such difficulties, please reply to this email with the specifics of what you intended to order and we will complete the order manually.
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PRACTICE NOTE ON FRAUD CLAIMS: To be successful in a fraud claim you need much more than a lie. You must show detrimental reliance on the lie, which is to say that the homeowner believed the lie and then acted in a way that caused detriment to the homeowner. If the homeowner did not believe the lie, it is impossible to allege that there was detrimental reliance. Hence fraud claims are not likely to succeed without specific allegations of the content of the lie, how the homeowner reasonably and actually believed the lie to be true and how the homeowner acted in reliance on the lie to his/her detriment.
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However, fraud upon the court is a different matter. If the players lied to the court and obtained a foreclosure judgment or sale based upon the lie then fraud is a proper cause of action for equitable purposes, i.e., (a) to set aside the the judgment or sale because the claimant was lying about their status, ownership and title OR (b) in a legal action for abuse of process seeking monetary damages for misrepresenting the case as being an action for restitution of an unpaid debt when it was in fact a scheme to generate revenue to the detriment of all real parties in interest, including of course the homeowner.

Interesting NY Decision on Acceleration: U.S. Bank N.A. v. Gordon, 176 A.D.3d 1006 (2d Dept. 2019)

 “failure to pay this delinquency, plus additional payments and fees that may become due, will result in the acceleration of your Mortgage Note. Once acceleration has occurred, a foreclosure action . . . may be initiated.”

the Notice of Default stated that “[t]o avoid the possibility of acceleration,” Defendants were required to make certain payments by a specific time, or ASC “will proceed to automatically accelerate your loan.” (Emphasis added).

see https://www.jdsupra.com/legalnews/ny-appellate-court-holds-default-letter-29981/

So it seems that in New York a notice of intention to accelerate or any notice that says that the supposed “lender” will accelerate is not the same as an actual acceleration. Actually that makes sense because any other interpretation would defy the intent of the notice of default. the notice of default is for the purpose of giving the borrower notice that unless they bring their payments up to date, the entire loan will become due.

The inherent logical and legal problem with this decision is that it is inconsistent with Florida (see Bartram case) and other states who made decisions as to implied “deceleration” for purposes of evading the effects of the statute of limitation. In fact, this very decision uses such “logic” to arrive at the conclusion that the “lender” is not barred because there was no acceleration. There was only an expression of an intent to do so. therefore any claims arising from acceleration could not arise.

In short the courts are speaking out multiple sides of their mouths.

On the one hand they say that deceleration which has never been claimed or noticed occurs upon the rendition of an order dismissing a defective foreclosure action and that the statute of limitations does not run on the balance where the “lender” has  given “notice” that it is intending to accelerate. The courts have thus “interpreted” a legal fiction into practical existence contrary to the rules of law. The acceleration is rendered void upon losing in court. There are various possible criticisms of such doctrine but the best one I think is “nuts.”

On another hand (or mouth) they are approving of “interpretation” of a notice of default declaring an intent to accelerate as actual being the acceleration for purposes of foreclosure. This is also crazy. If the notice of intention to accelerate was the actual acceleration then the notice would be fatally defective pursuant to paragraph 22 — which requires notice of default and an opportunity to cure it without paying the whole balance. So “intent to accelerate” cannot be the same as declaring acceleration since it would violate both law and contact. yet there it is in most courts where the “intent” is sufficient (according to most judges) to be an actual declaration of acceleration.

And still on another hand (or mouth) they are saying that acceleration does not occur where the lender declares only an intent to accelerate. This again is insane in the context of the foregoing “doctrines” imposed by the courts.

And of course the declaration of intent is contained in a “notice of default” that is a complete legal nullity, to wit: it is declared on behalf of U.S. Bank and a trust neither of which have any interest in the loan.

In short, the courts are willing to bend every rule, break any logical flow, and divert every rule in order to rule in favor of nonentities just like this case. U.S. Bank had no right, title or interest in the loan, debt, note or mortgage and neither suffered any financial loss for nor was it exposed to any default  declared or otherwise. And neither did any entity supposedly or presumably represented by U.S. Bank.

Note that acceleration can be accomplished through filing of a lawsuit where acceleration is declared. But in nonjudicial states, this is not possible if nonjudicial foreclosure is pursued.

Retainer Agreements Cast Doubt on Whether Law Firms Are Advocates or Are One of the Real Parties in Interest

What changes do you think are necessary in the Federal Truth in Lending Act, FDCPA, RESPA and SEC regulations?

Email your comments to neilfgarfield@hotmail.com

see 501851_2018_Nationstar_Mortgage_L_v_Nationstar_Mortgage_L_EXHIBIT_S__17-1

I completely get how there is immunity for lawyers advocating even bad positions for their clients. Anything less would chill access to the courts. No arguments here.

But when you read the above linked agreement, it seems to me that the law firm has crossed the line from advocate to interested party. The warranties and guarantees are all in reverse for what you would ordinarily expect.

Assume that the claimant is fake and so is the claim. If the claim is foreclosure then success means that a fake claimant is forcing the sale of property and keeping the proceeds. And I say that the people and entities assisting in that effort should not be protected by any immunity or privilege.

In short, if the lawyer is in it for the money and knows there is no claim, then any effort he or she makes is in furtherance of a fraudulent scheme in which the lawyer is one of the beneficiaries. Why should that be protected by any immunity?

I think the current interpretation of litigation immunity is being abused by stockbrokers on Wall Street who call themselves “banks” or “investment banks.”

Just like they do with “originators” who are nothing but shields against Federal and state lending laws, they are hiring lawyers through various conduits who call themselves “Servicers” to sell a nonexistent claim and get an award for defrauding the court, the borrower and even the lawyer representing the borrower.

What do you think?

This the first part of a series that will be devoted to changes that are needed in Federal and State lending, collection and servicing laws.

 

Foreclosure Defense: To BKR or not to BKR, here are the issues in Bankruptcy

The bottom line is that Chapter 7, 11, or 13 bankruptcy can be effective tolls in defending against unlawful foreclosures, but hey are not magic bullets. Like all legal procedures attempting to navigate them without a licensed legal professional who is a known quantity in Bankruptcy Court, is at the very least hazardous.

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

GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================

I have a client in the service of our country for whom I am rendering services with minimal charges. He asks me now about filing a bankruptcy petition. LIke all litigation strategies contesting unlawful foreclosures, success really depends upon either a successful discovery strategy, a successful cross examination of the robo witness, or both. Here is what I wrote to him:

First I need to coordinate with your BKR attorney. Make absolutely certain that you put nothing on any of your schedules that could be construed as admitting that  there is a valid secured lien in favor of anyone. Second, you might not need to file a lawsuit, because they will probably file a proof of claim — and you can object to the proof of claim. We often trip them up exactly there. If they don’t file a proof of claim (theoretically they are are not required to do so if they claim to be a secured creditor) you can file one for them in which you state that nothing is owed and there is no lien in favor of the named creditor.

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But if your schedules are done correctly (contrary to virtually all software used by BKR attorneys) they will be forced to file a proof of claim, because you will be listing the house as an asset that is collateral for a loan, if it still exists, that may be owned by John Doe.
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They might also file a motion to lift stay (MLS). That gets tricky because the threshold on such a motion is whether there is ANY color of a claim that could be pursued in the state courts or by nonjudicial foreclosure and subsequent possession. Assuming we are right that the current claimant has no claim, the lawyers and/or servicers will produce fake documents that are facially valid, even though they are totally fake.
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In most instances the facially valid documents are taken as sufficient color of title or claim such that the stay is lifted. While this is often treated by both attorneys and judges as a judgment on the merits, it is not. It is merely a determination by the bankruptcy court that in the interest of judicial economy and the bankruptcy estate, the matter should be resolved under state law, rather than Federal bankruptcy law.
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Depending upon how the wind is blowing, you can file a lawsuit. You can do this in one of three ways: (1) an adversary lawsuit in the bankruptcy court seeking declaratory, injunctive or supplemental relief, (2) a collateral action in state court or (3) a collateral action in Federal court.
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The key to any of this is getting discovery. First you serve interrogatories, requests to produce and requests for admissions directed at who owns the debt by reason of having paid for it. The added implied component is that they paid a party who owned the debt by reason of having paid for it. And the further implied element is that the claimant paid value for THE debt not just any debt, such as that arising solely from the note itself which may or may not be evidence of the debt.
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Then you file a motion to compel if they don’t answer or object. That is standard fare for the foreclosure mills. If they do have a confirmable money trail you are most likely going to lose, so if you get to that point, I think it would be wise to settle. While there have been some judges who simply won’t give anything to homeowners and who think that all homeowners in foreclosure are deadbeats, my experience is that the overwhelming majority of judges will grant an order to compel answers to the discovery propounded to the claimant.
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The big mistake made by pro se litigants is that they snatch defeat from the jaws of victory by failing to file a motion to compel and then failing to file a motion for sanction seeking to strike the pleadings and enter judgment for the homeowner. the plain simple fact is that in most cases the entire foreclosure case rests upon a paper trail that diverges from the money trail. If you are successful, at a minimum, you will be undermining the prima facie case that the claimant is pursuing foreclosure for restitution of an unpaid debt owed to the claimant — and you will win at least 65% of the time (based upon my experience).
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The reason for the high percentage of cases in which the foreclosure mills lose the case is simply that they don’t have a real client, a real claim or a real claimant. Their entire case is completely dependent upon presumptions arising from the facially validity of fake documents.
*
As I have seen repeatedly, possession of the note is by the law firm and the law firm is naming a claimant as client with whom they have had no contact nor any retainer agreement. It is all based upon plausible deniability of everything blows up. And the lawyers under current construction of litigation privilege seem to have total immunity for pushing a revenue scheme that includes the law firm.

CFPB Finally Clarifies Rules for “Originators”

The most important label used by stockbrokers (acting as “investment banks”) was to label a company as an “originator”. The term had no actual meaning. There were lenders who loaned money, and there were mortgage brokers who were paid to introduce a lender and a borrower. But what was an “originator”?

The stockbrokers knew that if a term had no meaning in the world of finance it would also have no meaning in the courts. So the schemers became the “authority” on what it meant to be an “originator.” And like most of their other labels they defined it in any manner that furthered their scheme of securitization, even if it meant that the definitions were completely contradictory of each other.

In foreclosure cases the originator is generally assumed to be the lender. But as anyone in the banking industry will tell you, if they loan money they want to be called a lender which makes it crystal clear who they are and what they are doing.

And inserting MERS as “nominee” for what would then be labelled as a “lender” who in fact was nothing more than a mortgage broker or salesman does not make MERS anything, does not make the party named as lender an actual lender and does not legally create any legally enforceable agency agreement between MERS and “lender.”

The truth is that from around 2002-2009, virtually no lender was an originator and no originator was a lender. This led to inherent problems with the paperwork for the loan. No paper conveyance of a mortgage, including its initial execution and recording is legally valid without the named transferee paying for the debt. If ABC was an originator but not a lender then it should never have been payee on the note nor mortgagee on the mortgage nor beneficiary or “lender” on a deed of trust. That’s the law — and for good reason.

Residential loans are first about the money. The paperwork is required by law to follow the money. The whole problem with the securitizations scheme devised by stockbrokers is that the paperwork did not follow the money. This was intentional since it opened up opportunities to sell the paper multiple times without the money ever moving. That seems counter-intuitive (unbelievable) but it is true. It’s actually a very old scheme in a brand new coat.

So that is why an industry that was a model for expert documentation of every facet of lending became an industry rife with mostly false paperwork.

All of this was enabled largely by the use of the word “originator” which was taken to mean that “lender” could be expanded under existing law to mean something broader than the actual party making a loan. It can’t. Court decisions to the contrary are not just bending the law, they are breaking it. No court is allowed to make assumptions of act that are not in evidence. Assuming that somehow the foreclosure will be used to pay off the debt is one of those assumptions. And it is wrong.

Even if the there is a known third party who is making the loan of money, without disclosure it is a table-funded loan and against public policy in the Truth in Lending Act whose purpose is to create transparent disclosures as to the party with whom the borrower is supposedly doing business. The borrower is intended by law to be able to make a choice between lenders and to negotiate the best terms with the best lender. That is the whole point of the Act.

Disclosure would require the lender to disclose compensation, fees, commissions, profits or revenue of every kind arising from the commencement of the loan. But that would have meant telling the borrower about the profits that far outstripped any known industry standard compensation or even the amount of the loan itself.

Borrowers, in turn and pursuant to TILA, would then have the opportunity to bargain for better terms considering the outrageous profits that the lender was generating from the commencement of the loan — all as more particularly set forth in the securitization scheme that was not disclosed to any borrower.

The same holds true for the investors who were the ones who put up the money in the first place. Had they been told that compensation arising from the completion of the cycle (investment to loan and then sale of securities) would be far in excess of what was industry standard, they too would have had an opportunity to bargain for a piece of a pie that was exponentially higher than any revenue previously allowed to a stockbroker who put together a deal.

The upshot is that judges and others ask whether the borrower received the loan as though that should end the discussion. But it only ends the discussion in a conventional loan commencement. In the context of securitization the question should be who received what money as a result of the commencement of this loan? In short, full disclosure of everything.

And then the second question should be whether that allocation of revenue and profits and proceeds was part of the limited bargain between the stockbroker and borrowers and between the stockbroker and the investors — or whether the larger undisclosed bargain (issuance and sale of securities) should now be the subject of unjust and wrongful enrichment precisely because the borrowers and the investors had no opportunity to know or bargain.

Put another way — on a level transparent playing field what would be the most likely distribution of those pronogrpahic profits? How much of that allocation would offset the amount owed by the borrower? How much would offset the loss of principal by the investors?

So it may be one thing to look at a loan of $200,000 and see it as a $200,000 transaction. It might be one thing to look at an investor paying $300,000 for that loan and see it as a $300,000 investment. But it is quite another thing when you actually look at the whole transaction which generated a total of $2,400,000 for the stockbrokers, most of which was  completely undisclosed to borrowers or investors.

It is a Ponzi scheme mixed with elements of both a bucket shop and a boiler room operation. The scheme works as long as there are always more investors advancing money into the scheme. The stockbrokers actually don’t care if the borrower repays the loan or not as long as enough borrowers make payments in a manner that seems to corroborate the illusion that the loan was made for interest and principal payments.

The time is coming when the effective interest rate for loans falls below zero for exactly that reason. Stockbrokers (“investment banks”) don’t care about the payments on any specific loan. They care about continuing the illusion that the unsecured certificates (“mortgage bonds”) they are selling are actually worth something. They have no inherent value because it is only an unsecured promise from the stockbroker that it will make payments to the investors — until external circumstances relieve it of that obligation.

So now the CFPB is attacking the definitions and licensing of “originators.” The thing to notice is that there were no definitions or restrictions on the activities of anyone calling themselves an “originator” before Dodd-Frank and before this latest regulatory move  by the CFPB.

see https://files.consumerfinance.gov/f/documents/201911_cfpb_final-rule_loan-originator.pdf

 

MERS is Probably an Offshore Operation

Just an observation based upon current information.

MERS was acquired in 2008 by Intercontinental Exchange (ICE), a former Enron competitor. As its name implies (and the job listings for ICE) it operates in several continents. It controls most of the world’s futures and securities exchanges and clearing houses.

According to filings by ICE, the acquisition of MERS would have no material impact on earnings. That is because MERS was never intended to make a profit and probably never did. It was always a vehicle to advance plausible deniability of illegal conduct.

The principal backers for ICE US Trust were the same financial institutions most affected by the crisis, the top ten of the world’s largest banks (Goldman Sachs, Bank of America, Citi, Credit Suisse, Deutsche Bank, JPMorgan, Merrill Lynch, Morgan Stanley and UBS). Sprecher’s clearing house cleared their global credit default swaps (CDS) in exchange for sharing profits with these banks.[7][8] By September 30, 2008 the Financial Post warned that the “$54000bn credit derivatives market faced its biggest test in October 2008 as billions of dollars worth of contracts on now-defaulted derivatives would be auctioned by the International Swaps and Derivatives Association . In his article in the Financial Post, he described ICE as a “US-based electronic futures exchange” which raised the stakes on October 30, 2008 in its effort to expand in the $54000 bn credit derivatives market.(Weitzman 2008)[9]

Whether the “MERS System” exists on servers within the United States or is operated by people within the United States has always been an open question. Now it appears as though the answer is no. It certainly suggests some questions in discovery.

And that is because

  • there is the dubious agency authority asserted by those who use the name of MERS as though it was their own,
  • on behalf of “lenders” or “successors that were neither lenders nor successors to lenders, and
  • is actually now the product of international finance controlled by offshore people and entities,
  • leaving the status of MERS in American courts to be at least in doubt.

Watch that labelling! Calling an entity a “lender” does not make it so although a facially valid document might raise a presumption in favor of the label even if it a lie. Calling an entity a “successor” is absurd unless (a) the original entity owned the debt (b) at the time that the original entity was acquired or merged with the “successor”.

Foreclosure mills are counting on your lack of curiosity. That is the what enables them to use labels that have no basis in fact.

Ocwen on the Hot Seat — Again

“Ocwen has repeatedly made mistakes and taken shortcuts at every stage of the mortgage servicing process, costing some consumers money and others their homes,” CFPB Director said in a statement.

[Editor’s Note: When will the agencies address the elephant in the living room: Ocwen is not making mistakes. It is making facts that don’t exist in the real world. Why? Because Ocwen is just one player in a very large scheme constructed to create the illusion that the debt exists in the hands of those who are seeking to collect, process and enforce it. It doesn’t. ]

see https://valliantnews.com/2019/11/15/ocwen-accused-by-u-s-state-agencies-of-mortgage-servicing-violations/

see https://files.consumerfinance.gov/f/documents/20170420_cfpb_Ocwen-Complaint.pdf

For a fairly full expose of the real nature of the Great recession see https://www.freep.com/story/opinion/contributors/2019/11/17/housing-market-crash-foreclosures-enriching-real-estate-speculators/4195373002/

 

And for the Curious — MERS is a Trademark of Bank of America

see https://www.fraudstoppers.org/wp-content/uploads/MERS-NATIONSBANK-SECURITY-AGREEMENT-assignment-tm-1773-0949.pdf

So much for being an independent private title registry

It’s all smoke and mirrors. And an interested reader and client sent me this:

When I looked up the address on the MERS Registration Trademark that you posted today on your blog, it came up with a Virtual Office Location.

What are the main features included for McLean, VA Location Services?

Answer:

  • Professional business address
  • Mail & package receipt, dedicated locking mail box on site in most locations
  • Mail forwarding on request (daily, weekly, or monthly) cost of postage additional
  • Use of address for business license, business cards, website, etc.
  • Local presence & drop off & pick up point for clientele
  • Lobby & directory listings available for $25 per month at most locations
  • Access to private day offices & conference rooms at hourly rates ($25+)
  • Complimentary access to cyber café’s with wireless internet, coffee/tea bar, etc. where available

About this Location

Thank you for visiting Davinci Virtual. At our virtual office locations in Executive Suites of Tyson’s Corner, 8201 Greensboro Drive, McLean, VA 22102 we have everything to meet your virtual business needs. Continue your telecommuting or home working and impress your clients with a virtual address at Executive Suites of Tyson’s Corner, 8201 Greensboro Drive, McLean, VA 22102.

To Appeal or Not To Appeal — What was the Question?

Making a mistake is not appealable unto itself. You must show that the error caused an improper decision. And by “improper” I mean that there is no way under existing law that the decision was based upon the law or, if you wish to pursue a still higher standard of review, that the law as applied violates constitutional protections.

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

GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================

So the judge is quite certain that she has no sympathy for your position. Nonetheless, if you plan to appeal, and the rules of Court permit it, it may be to your advantage to file a motion for rehearing which focuses in on one or two points that could be right for appeal. This focuses the attention of the clerk for the appellate judge who orders the case to be put in one pile (affirmed) or another (review). That one decision — usually made by a clerk — either gives air to your appeal or kills it.

Remember that an appeal is solely directed at the question of whether or not there was any basis upon which the trial court could have entered the final judgement. it is not a retrial of the case. It is an entirely different inquiry looking for “fundamental error.” As long as the court record has anything in it that supports the ultimate decision it is extremely likely that the judgement, even if disliked, will be affirmed.

FAST FACTS: 1 in 6 appeals are successful to any degree. Of those more than half are in criminal cases where the stakes are perceived as much higher than civil cases. That means that less than 1 in 12 civil appeals will accomplish anything. And of the ones that accomplish something only a fraction are actually reversed with judgment for the losing side in the trial court.

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The fact that nobody else would have decided the case that way is not a basis for appeal. Bias is not a basis for appeal either unless the record clearly shows that the judge had a direct interest in the outcome of the case.
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An appeal is about whether anyone sitting as Judge could have decided the case as written in the findings of fact and law. That is different from the case at the trial level, which is about who should win. Appeals are about who could win. If the party who won at trial is party who could win under existing law, the decision will almost always be affirmed.

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The question in your case is whether or not the trial court appropriately applied legal presumptions to arrive at the conclusion that the plaintiff actually owns the loan, and was therefore an injured party, and was therefore entitled to foreclosure. The first such question focuses on whether there were any legal presumptions to be applied, and if so, for whose benefit they should be applied.
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The presence of facially valid documents definitely triggers the court discretion on whether to apply legal presumptions of fact. So the remaining questions relate to whether or not there are fatal inconsistencies in the facially valid documents or whether evidence is in the court record that requires rejection of the legal presumption of fact. A rejection of the legal presumption of fact means that the party relying on such presumptions must actually introduce evidence of the facts that had previously been presumed.
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If argued well in trial court, the judge can be educated as to the effect of legal presumptions and might slow the inevitable outcome once the presumptions are applied.
*
As Dean Wigmore has explained, ” the peculiar effect of a presumption “of law” (that is, the real presumption) is merely to invoke a rule of compelling the (trier of Fact) to reach a conclusion in the absence of evidence to the contrary from the opponent. If the opponent offer evidence to the contrary (sufficient to satisfy the judge’s requirement of some evidence), the presumption disappears as a rule of law, and the case is in the (factfinder’s) hands free from any rule.” As more poetically the explanation has been put, “(p)resumtions… may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts.”
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In the absence of either legally permissible presumptions or real evidence, the plaintiff fails on the proof, to wit: it fails to satisfy the requirements for a prima facie case.
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So the question here needs to focus on the Essential Elements of the Prima facie case. And the essential element above all others is whether the case has produced a judgement that will be used to satisfy a just debt owed to a party who paid value for it.
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While there are plenty of good strong legal and logical arguments to challenge the existence of the debt, I know of no instance In which court has been the least bit receptive to that narrative. It leaves open the unanswered question about what happened to the debt and does that absolve the borrower of all liability to pay anything.
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You don’t need to prove where the money is going. You only need to raise sufficient questions about the evidence such that the legal presumptions should have been discarded.
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In your case, with the legal presumptions discarded, the Plaintiff would have had to introduce credible evidence that it was the owner of the debt in order to establish ownership of the mortgage, which in turn is needed to prove authority to foreclose. The Plaintiff is allowed to rely completely on legal presumptions if the case is based on facially valid documents — although a complete absence of actual evidence is frequently the excuse for an appellate court to question and then reverse the trial court’s decision.
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In your case the reliance on legal presumptions has led to an attenuated conclusion of fact that could be challenged on appeal. As per the Court’s finding of fact, the mortgage was transferred several times. At one point it was transferred to U.S. Bank as trustee for a trust and then, after that transferred to Bank of America.
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An instrument purporting to transfer a mortgage without a contemporaneous transfer of the debt is a legal nullity in all U.S. jurisdictions. The transfer of a debt occurs ONLY upon satisfaction of one condition — that value has been paid  by the transferee to the transferor who had in turn paid value for the debt. That is universally true. It requires proof of payment OR it requires sufficient evidence to raise the presumption that payment was made.
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In your case the Judge has expressly ruled that value was paid. Since there was no evidence of any proof of payment there can only be one possible explanation for such a finding — i.e., that the court was relying upon presumptions of fact arising from facially valid documents.
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Transfer of the debt is presumed when the original note is transferred because it is presumed that the original note is evidence of the debt and should be accorded the effect of title to the debt. Since promissory notes are cash-equivalent instruments, there is no rational reason why a note would be transferred without payment; hence payment is presumed.
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This presumption is defeated only if the court record demonstrates that there either was no financial transaction in which the debt was acquired or where the record raises sufficient questions such that the presumption should not have been applied. This is exactly where the courts frequently commit error but not necessarily reversible error.
*
In most loans that were ever subject to claims of securitization, the origination of the loan took place between an “originator” and the borrower, not the actual lender and the borrower. In plain language that means that the since the originator had never paid any value for the debt, they never owned it and therefore the mortgage naming the originator was void, which in turn means that any assignments of the void mortgage were also void.
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This precisely why the Truth in Lending Act says that table funded (third party funded) loans are against public policy. But the Truth in Lending Act does not expressly state that such loans are void, meaning that acting in a representative capacity at a loan closing without the knowledge of the borrower is frowned upon but not explicitly outlawed.
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So we must accept the idea that somehow the mortgage is valid but that does not address the question of who can enforce it or transfer it. The answer to that question in all jurisdictions is that it is only the party who has suffered a financial injury resulting from nonpayment. That is both a constitutional and statutory requirement.
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In order to suffer financial injury from non payment you must have paid value for the loan. Payment of value is established upon proof of payment or a presumption that such payment was made.
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The problem in your case is that the Judge presumed that such payment was made not just because she thinks she was allowed to do so, but because she actually believes it. She is assuming that even if there were “technical” irregularities or mistakes, that the foreclosure will result in payment to the party (ies) who paid value for the debt. And the problem with that, as we all know or at least suspect, is that she is wrong.
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The money will go to players who were angling for revenue and the parties who actually advanced the money for the origination or acquisition of the loan are long gone. They won’t see one cent from the sale of the home.
*
The problem for you is therefore whether the judge was rightfully exercising her authority, jurisdiction and discretion to use legal presumptions in lieu of legal proof by proof of payment. You can’t introduce new evidence on appeal. So you must rely entirely upon what is in the court record or absent from it. And it is not enough to be correct; you must be convincing to a panel of judges who at best don’t care whether you win or lose. 

Why Are All the Documents Fake in foreclosures?

The problem that most pro se litigants  and foreclosure defense lawyers have, as will be discussed in part on Thursday’s radio show with Patrick Giunta, is that most people fail to understand and therefore fail to plead and prove the nuanced difference between “the debt doesn’t exist” and “this foreclosure proceeding is a sham.”
*
But pleading the sham without understanding that the reason for the sham is that it is no mere technicality that the debt does not exist and that fact drives the the reason for all the fabricated, false, fraudulent, forged, backdated and robosigned documents. The players MUST use fake documents because they have no real transactions that could be memorialized.
*
As a practical matter if there really was a sale of the debt, the purveyors of foreclosure would be very quick to show that — the same way that lenders have done for hundreds of years.

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

GET FREE HELP: Just click here and submit  the confidential, free, no obligation, private REGISTRATION FORM. The key to victory lies in understanding your own case.
Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 954-451-1230. Ask for a Consult or check us out on www.lendinglies.com. Order a PDR BASIC to have us review and comment on your notice of TILA Rescission or similar document.
I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM.
PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM 
Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
========================

A client is asking me the “what now?” question. Here is my response.

So here is my perception of the problem.

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You are stuck in a procedural bind. The essential, primary and riving purpose of any court action is to bring finality to any dispute. This doctrine of finality often gets in the way of justice but the cost of finality is generally believed to far outweigh the loss of justice that occurs when it is employed.
*
Legally it is entirely possible that you actually still own your property or that you could get back title and possession and be done with it. Let me explain.
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Title is not subject to any statute of limitation. There is no requirement to renew a deed. If you own title then you own it forever — fee simple absolute. The only exception is in boundary disputes where a fence, for example, overlaps onto a neighbor’s land as described in their deed. After 20 years of such incursion, given the right elements, adverse possession applies, which is a statute of limitation on your claim to force the neighbor to remove the offending fence.
*
Thus if there was no change in record title, you still own the property. Bill Paatalo, with assistance of counsel, is using this to file actions for ejectment in cases where the homeowner is still the record title owner or has been deemed to still be the record title owner because a sale and foreclosure deed were vacated or otherwise deemed void. As the owner of title you can forcibly remove anyone on the property or who claims the right to possess the property.
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But the only way this can be used is if you are indeed still the record title owner of property. If your argument is that title should not have been changed then you are admitting that record title has changed. So that might be a first step in getting the coveted order declaring the foreclosure process, judgment, sale and possession vacated or void. THEN you can once again claim to be the owner and seek ejectment (which is a step often overlooked by both pro se litigants and attorneys).
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If your argument is that title should not have been changed because the foreclosure was fraudulent, you must plead and prove that regardless of whether it is a motion to vacate or an entirely new lawsuit for declaratory, injunctive and supplemental relief.
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Pleading and proving that is a serious challenge for most pro se litigants and attorneys. Most people make the mistake of “raising questions.” Because of the doctrine of finality the time for raising questions or inferences is long past. You must state your case with specificity and particularity and prove it by clear and convincing evidence or you won’t get to first base.
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Based upon my experience over the last 13 years with this issue my opinion is that the only clear path to victory is to address the elephant in the living room. In lay language you must refrain but being coy and state affirmatively what you can prove and that those facts qualify as a cause of action for which there is a legal (money damages) or equitable (injunction or declaration) remedy. Nothing less will do.
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If you are looking for the court to do the work for you, think again. During the primary case the court might give you a little help; but after judgment is rendered and events have happened the court will offer nothing other than resistance which is exactly what every judge is required to do. That isn’t bias. That is a judge following the rules.
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The elephant in the living room is that the debt simply does not exist and the money advanced has already paid for itself many times over — even if that money was never turned over to the investors who put up the money paying the initial value for the debt (i.e. the origination or acquisition of the loan).  If you are not willing to make this assumption my opinion is that you should not bother trying to seek any remedy unless you can spot some scrivener errors that temporarily suspend the effect of the foreclosure.
*
The problem that most pro se litigants  and foreclosure defense lawyers have, as will be discussed in part on Thursday’s radio show with Patrick Giunta, is that most people fail to understand and therefore fail to plead and prove the nuanced difference between “the debt doesn’t exist” and “this foreclosure proceeding is a sham.”
*
But pleading the sham without understanding that the reason for the sham is that it is no mere technicality that the debt does not exist and that fact drives the reason for all the fabricated, false, fraudulent, forged, backdated and robosigned documents. The players MUST use fake documents because they have no real transactions that could be memorialized.
*
The law requires that the foreclosure be invoked solely for the purpose of restitution of an unpaid debt owed to the claimant. Judges have played fast and loose with this requirement believing that the end result of the foreclosure is that the owner of the debt is going to paid with the proceeds of the forced sale of the home.
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While Judges recognize irregularities in the documents and procedures invoked in foreclosures, they are proceeding under the doctrine  of “damnum absque injuria.” The judges are saying that there might be a violation but there is no injury because you owe the money and didn’t pay it therefore you should lose your home and the interests of justice are thereby served. 
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So THAT is what you must attack headon — not by alleging that there is no debt (even though that is true, it is counterintuitive and not believable) but by alleging that the the foreclosure was not intended to, and did not result in payment to anyone who had ever paid value for the debt.
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In  short, foreclosure is about restitution but no restitution occurred, nor will it ever occur because the foreclosure was a scheme to obtain revenue instead of restitution. It was a scheme to produce revenue BECAUSE it was not a proceeding to pay a debt. 
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So you want to allege that while the foreclosure documents were facially valid, it was a fraud upon the court and the borrower in which the property would be sold to satisfy revenue objectives and would never be used to pay anything to reduce the debt. Notice what I am saying — you want to tacitly admit the debt exists even though it doesn’t.
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Your attack is on the premise that the claimant owns the debt by reason that is paid for the debt and the underlying premise or bias of the judge that even if the claimant doesn’t own the debt the proceeds of foreclosure will be paid to the parties who paid for the origination and/or acquisition of the debt. Those proceeds are not ordinarily paid to anyone other than those who collude to steal homes through foreclosure. Most people skirt around this issue and therefore fail as early as the pleading stage. If you’re not willing to address it, go home (your new home).
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Crafting a pleading that addresses the nuances of what I have outlined here is the first step. But such a pleading must have more than legal conclusions, It must plead facts that you faithfully believe to be true. that is where you need some expert to come in and give you the facts that they have uncovered.
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By stating overtly that the foreclosure was not invoked to create a vehicle for restitution of an unpaid debt but was rather a revenue scheme for the interlopers who started it, that allegation MUST be taken as true for purposes of pleading. I think it is the only thing that will help you avoid dismissal of the claim.
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And don’t refer to the interlopers as intermediaries; if you do that you will be tacitly admitting that they had authority from the party who actually paid value for the debt and who actually had financial injury from non-payment even though no such party exists. 
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Assuming you have crafted such a complaint or motion and you have asked for an evidentiary hearing or trial, your next and most crucial step is discovery. Since you have overtly stated the basis of your attack (assuming you survive a motion to dismiss), any Discovery question relating to ownership and payment of value for the debt, the parties involved and dates will be, as we have already repeatedly seen in courts across the country, the subject of an order to compel answers after they fail to answer. You are very likely to win that argument.
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And then in a motion for sanctions and motion in limine, you are entitled to draw an inference from their willingness to answer and you are entitled to an order that either dismisses their claims or defenses or an order restricting them from putting on any evidence at all regarding ownership and payment of value for the debt.
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It is a circuitous path, but it is the only one possible, in my opinion, based upon the statistics of who wins and who loses. In the end you and and your lawyer must remember that foreclosure is not about paperwork; it is about money. Reminding the court of that fact is central to educating any judge as to why you should win.
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