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Modifications Are Part of the Big Lie: Don’t send that application for modification if you don’t want to waive important rights.

The application for modification licenses New Rez aka PHH aka Ocwen to sell, distribute the personal data and transaction data to third parties. Besides the obvious problems with data privacy, this confirms the apparent voluntary participation of the homeowner in a securities scheme that was and still is concealed from the homeowner.

By filing the application the homeowner is waiving his right to keep the compensation that was paid for the homeowner’s role in launching the securities scheme or to ask for more compensation. And it creates an assumption of risk by the homeowner that was, is, and always will be concealed from the homeowner. All of this is “illegal” but by signing the document the homeowner has launched a legal presumption that the document and everything on it is valid.

It reaffirms the concealed nature of the transaction in which the note and mortgage were executed and delivered. Instead of a loan agreement, the application alone establishes the authority of the New Rez aka PHH aka Ocwen to act as agent/servicer even though it has no such authority. It also makes New Rez aka PHH aka Ocwen the creditor, which means the homeowner is accepting a virtual creditor instead of a real one. And the homeowner is waiving any right to contest the standing of New Rez aka PHH aka Ocwen to administer, collect, and enforce the note and mortgage.

On behalf of a client, I recently received an “offer” for my client to apply for a modification. My response is going to be that we would be happy to apply for modification if New Rez aka PHH aka Ocwen can demonstrate (a) that the loan account receivable exists, (b) that U.S. Bank owns it on behalf of either a trust or certificate holders and (c) that New Rez aka PHH aka Ocwen can demonstrate that they have been authorized to act as agent/servicer for a creditor who owns the underlying obligation because (a) they paid for it and (b) they received a conveyance of ownership of the debt as part of a purchase transaction from someone who owned the loan account receivable.

Of course I know that they cannot do that. I know it because along with Patrick Giunta, Esq. in Fort Lauderdale all of that was established beyond any doubt. the Judge found that the trust, the trustee, and the agent/servicer (Ocwen) had no relationship to the debt, note, or mortgage but may have had possession of a note (now lost) that might have been an original. Final Judgment for the homeowner. In fact, at trial, the robowitness was dumbfounded when he realized that the fabricated “Power of Attorney” appointing Ocwen as servicer and as an “attorney in fact” had been not only false but incorrectly created with Chase being the grantor. Chase had nothing to do with this case.

But because they did not file the “original note” until after the lawsuit began — in 2008 — the judge felt compelled under Florida law to enter judgment for the homeowner with findings of fact that disposed of the merits of the case but dismissing the case without prejudice. that is because finding that there was not even the allegation of possession of the note before the filing of the lawsuit there was no jurisdiction. And no jurisdiction means the court is powerless to do anything but dismiss the case.

So the lawyers refiled the case even though there has been a complete negative adjudication of all facts necessary to prove a prima facie case for foreclosure. And they barely managed to squeak through a motion to dismiss because the defense of res judicata is an affirmative defense and so we will file our own motion for summary judgment.

The first interesting thing about all this is that the lawyers chose to file a case that they had already lost. Why? Well until two weeks ago, the law in that DIstrict was that there was no claim for attorney fees if the homeowner won because they established that the named claimant lacked legal standing — a fancy way of saying no case.

The recovery of attorney fees can only be based upon statute or contract. There is no statute that specifically grants the right to recover attorney fees when the named Plaintiff loses a foreclosure case. But there is the contractual provision in the note and mortgage for recovery of fees and Rule 57.105 Fla. R.C.P. that says that such provision is reciprocal.

BUT once the homeowner proves that the Plaintiff is NOT part of the contract, the law WAS that having proven that there was no contractual relationship between the Plaintiff and the homeowner, the homeowner was barred from taking advantage of the attorney’s fees provision in that contract.

All of that may seem to have some logic except for one thing: it was the Plaintiff who invoked the contract when they started the lawsuit asking for attorney fees and when they were shown to be lying, there are about a dozen reasons why they should not escape an award of attorney fees and costs. And that is what the Florida Supreme Court found. So now the attorneys have filed a new lawsuit that they thought had no risk if they lost; but they have a huge risk because the premise under which they were operating was not only wrong but downright malevolent. The playbook is designed to wear the homeowner down even if there is no case against the homeowner.

And so it is interesting that the unauthorized agent/servicer New Rez aka PHH aka Ocwen, constantly changing names to confuse the recipient, is now sending an “offer” to allow my client to apply for a modification. And just to be clear, that is no offer at all. They’re not saying they will consider it, grant it, or even that they are offering it on behalf of some named creditor. And that is why I scored points by filing three motions for sanctions against the opposing side which were granted. They showed up at “mediation” without any authorized person to settle the case. They were only authorized to offer to allow the homeowner to apply for a modification.

This particular offer was sent pursuant to a settlement agreement with the Florida Attorney General that requires them to modify loans. The AG office of course made the same mistake as all law enforcement and all regulators, to wit: that the agent/servicer was actually authorized to modify. In fact, the agreement can now be used to argue that they must have had the authority to modify — why else would that agreement require modification? THE AG was either hoodwinked or playing along. I don’t know.

But the main point of the modification is clear. It changes the falsely labeled loan agreement executed by the homeowner into something entirely different. Instead of a loan contract, the proposed application for modification changes the transaction forever. Perhaps the better description is that it reaffirms the concealed nature of the transaction in which the note and mortgage were executed and delivered. Instead of a loan agreement, the application alone establishes the authority of the New Rez aka PHH aka Ocwen to act as agent/servicer even though it has no such authority. It also makes New Rez aka PHH aka Ocwen the creditor, which means the homeowner is accepting a virtual creditor instead of a real one. And the homeowner is waiving any right to contest the standing of New Rez aka PHH aka Ocwen to administer, collect, and enforce the note and mortgage.

So there you have it. That is the reason they sent it. It was designed to lure me into sending this to my client in order to establish a fact that doesn’t exist and a fact that has already been defeated — standing for either the named Plaintiff (U.S. Bank as trustee for SASCO, etc) or anyone else designated by New Rez aka PHH aka Ocwen. If they had been successful they might have a shot on the second lawsuit. And it now licenses New Rez aka PHH aka Ocwen to sell, distribute the personal data and transaction data to third parties. Besides the obvious problems with data privacy, this confirms the apparent voluntary participation of the homeowner in a securities scheme that was and still is concealed from the homeowner.

By filing the application the homeowner is waiving his right to keep the compensation that was paid for launching the securities scheme or ask for more. And it creates an assumption of risk by the homeowner that was, is, and always will be concealed from the homeowner. All of this is “illegal” but by signing the document the homeowner has launched a legal presumption that the document and everything on it is valid. And it makes the unauthorized agent/servicer the agent of the homeowner!

The accountholder(s) [label establishes homeowner as holder of an account that exists] consent [uninformed consent] to the disclosure by my servicer  [affirms “servicer” as agent] or authorized third party,* [i.e, anyone and there is no referenced asterisk at the end of the document], or any investor/guarantor [note the introduction of new parties] of my mortgage loan(s) [affirming it is a mortgage loan], of any personal and non-personal information during the mortgage assistance process and of any information about any relief I receive, to any third party that deals with my first lien [affirming lien] or subordinate lien (if applicable) mortgage loan(s), including Fannie Mae, Freddie Mac or any investor, insurer, guarantor, or servicer of my mortgage loans(s) or any companies that provide support to them, for purposes permitted by law. Personal information may include, but is not limited to: (a) my name, address, telephone number; (b) my Social Security Number; (c) my credit score; (d) my income; and (e) my payment history [affirming paymetns were due] and information about account balances and activity and (f) my tax return and the information contained therein. I/We hereby authorize the servicer to release, furnish, and provide information related to my/our account to: [BLANK FOR ANYONE TO FILL IN LATER IF THEY NEED IT]

The Florida AG fell for this hook, line, and sinker. So have most homeowner and their lawyers. Take a closer look and ask yourself why they would have such wording if they were truly sure of their status as an agent for a lender, and why they wouldn’t announce guidelines for what the “modifications” would look like if “granted” and on whose behalf they are allegedly “modifying” the transaction falsely labeled as a loan. Every correspondence offering the hope of modification is a potential trap for homeowners who frankly, in my opinion, owe nothing. They were paid money equal to at most 8 1/2% of their revenue generated by these securities scheme, everyone received every payment to which they were entitled, and then they signed a note to give it back because they thought it was a loan.
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But if it was a loan then there would have been an identifiable lender who had an entry on its accounting ledgers showing payment of value for the underlying debt. No such entity exists because the investment bankers were securities brokers and security brokers are interested in trading securities. They had no intention of assuming any risk of loss on nonperforming loans, so they made sure that the transaction looked like a loan but wasn’t. They had no interest in lending and they did not lend money. Investors loaned money to the brokerage firms. And nobody complied with lending statutes because there was no lender.
DID YOU LIKE THIS ARTICLE?

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

Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. In  the meanwhile you can order any of the following:
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS, AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

 

Keep Your House: Understanding the lies about the FDIC.

A mistake is not the less so, and will never grow into a truth, because we have believed it a long time, though perhaps it be the harder to part with; and an error is not the less dangerous, nor the less contrary to truth, because it is cried up and had in veneration by any party.”—Locke, in King’s Life of him, second edition. Vol. I. p. 188, 192.
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I receive lots of inquiries about foreclosures where the FDIC is involved somewhere in the chain of events. Here is the first point: except in very rare instances, the FDIC is never involved in the title chain.
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If you see a document that says otherwise it is fabricated, forged, backdated, and robosigned by either electronic means, mechanical means or by human hands that belong to the person who has no idea what or why they’re signing. They only know that they’re authorized to ign but they don’t realize they were never authorized to sign that document. They were appointed as “authorized signors,” but the instructions to sign particular documents do not come from anyone who ahs legal right to issue such instructions.
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When laypeople start to use legal jargon they get themselves confused. And even some lawyers get confused by the mirage that appears without any foundation in fact or law. Securitization of loans presumes that there were loans and that the loans were sold in parts to investors.
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If the loans were not sold in parts to investors them there is no securitization by definition. Yes, it IS that simple. There is no sale unless there is a purchase and sale as prescribed by law.
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The fact the payment occurred does not mean the payment can be described only by one party even though the other party would not describe it in the same way. All contract law requires a meeting of the minds. There is no contract to enforce if there was no meeting of the minds. The remedy is not enforcement in such circumstances.
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The remedy is common la wor statutory rescission or reformation. In securitization claims, there is no meeting of the minds. The homeowner wants a loan and does not get a lender. Sometimes the homeowner gets a lender initially but then the “successor” does not accept any designation as a lender or actual successor to the party who originated the loan. It is all very confusing but you need to pay attention or you will lose your house to someone who is enjoying pure profit by forcing the sale of your biggest investment.
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The investment bank controlling the deal does not appear anywhere in the disclosed chain of events nor in the title chain. The originator is operating strictly for a fee and has no risk of loss for a badly underwritten loan. The homeowner is simply not getting what he/she wanted nor does the homeowner get anything that complies with the disclosure requirements under the Federal Truth in Lending Act.
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So questions come in about failed financial institutions and then how the FDIC handles notes and mortgages. Here is the simple answer: they don’t. Any document that stays otherwise is a lie.
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FDIC does not obtain the note. It has no custodial facility for receiving or storing promissory notes. It can get temporary control over the notes if, and only if, it becomes the receiver of a failed financial institution that owns promissory notes.

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While it was customarily true before securitization that each financial institution had its own portfolio of promissory notes, things have changed. In most cases — but not all — nearly all promissory notes generated by the financial institution were “sold” into the secondary market.
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This means that the bank or credit union received payment and delivered the promissory note to someone who probably destroyed it. The bank also issued an assignment of the mortgage if there was one.
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This looks like a sale of the underlying obligation, legal debt, note, and mortgage. It serves as the foundation for the illusion created by Wall Street banks that loans were being securitized. It is a trick learned from magicians. By distracting the attention of the viewer to one thing, the other thing is not noticed.
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On the investment banking side of that transaction, despite all claims to tech contrary, the investment banks wanted nothing to do with lending or loans. And they proved that by extinguishing the underlying obligation and the legal debt on any accounting record on which entries were made to reflect financial transactions. There simply is no loan account receivable and the debit from cash to fund the purchase simply does not appear.
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Instead, there is an offshore, off-balance sheet transaction in which the investment bank borrows money from, for example, Credit Suisse to JPM Securities, which gets repaid when JPM sells certificates to investors. The domestic transaction can be a debit to cash, for example, on the books of Washington Mutual, but most often WAMU was only acting as an aggregator of data leaving the “book entries” to be reconciled by their feeders like Long Beach Mortgage.
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When JPM in our example, sold certificates to investors it was NOT selling any ownership interest in the underlying obligation, legal debt, note or mortgage. It was selling a JPM promise to make periodic payments. But it used the name of a trust so that the JPM name would not show up on record.
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So when the sale of new certificates failed in 2008, most of WAMU’s business failed. So it went into receivership and bankruptcy and you can see for yourself if you get to the schedules that were field, that it was not claiming any of the “securitized” loans as assets. So neither the receiver nor the U.S. Trustee in bankruptcy obtained any control or ownership over any obligation, debt, note or mortgage.
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In that example, the FDIC had no reason to ask for or receive possession or control over any notes. But that did not stop JPM Chase from claiming that its purchase of the WAMU estate for Zero consideration was a purchase of the nearly $1 trillion in transactions originated with homeowners for which WAMU was either the aggregator or originator.
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If such a sale had taken place it would have been recited somewhere. No such claim was made at the time that the agreement was signed with the FDIC on September 25, 2008. NO assignment of mortgage was executed by WAMU, the U.S. Bankruptcy, trustee or the FDIC as receiver over the WAMU estate. No endorsement of note occurred either because the notes were long gone.
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If you look at other examples like Indymac, the matter becomes even more convoluted and from a policy standpoint nearly insane. The FDIC took control over the IndyMac failed estate just like WAMU. This time, instead of Chase, a new company was literally formed over a weekend with some midnight signings and notarizations of documents. (Don’t ask me how I know that). Extremely wealthy investors including Michael Dell were asked to put up money without actually paying it to start OneWest.
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Mnuchin was really a bag man or tool of the investment bank that put this one together. He was the guy everyone blamed for what happened but he really had no control over what happened.
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So in the OneWest-IndyMac example, the FDIC became the receiver of the IndyMac estate which did not include any loans originated with homeowners or any other transactions originated with homeowners. Those had already been “sold” off into the secondary market to buyers that had no intention of recording them as assets as described above.
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The reason that Sheila Bair flew into a rage, as chairman of the FDIC, while initially rejecting the proposed deal, and the reason why she was fired, was that the deal was the worst example of public-private corruption imaginable. I liked Obama but like Bush before him, he just didn’t get what was going on and was taking advice from the thieves who were plundering the U.S. economy.
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The FDIC became the vehicle for funding OneWest by covering 80% of the “losses” that did not exist on IndyMac’s balance sheet. So if IndyMac originated a transaction in which an investment bank paid a homeowner some money, the transaction looked like IndyMac had loaned the money — for about 1 millisecond. The truth was that IndyMac was only acting for a fee and had no control over the transaction or the money trail after the “closing.” This is the same as WAMU and countless others.
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If homeowners refused or failed to make scheduled payments, neither IndyMac nor the FDIC could possibly suffer a loss because there was no loan account to post the loss against. Thus the “acquisition” by OneWest could NOT produce anything different, just like the Chase-WAMU example.
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Here again, the FDIC does not receive possession, control, or the right to enforce the legal debt or note issued by the homeowner because it did not legally come into possession or control of the underlying obligation, legal debt, note, or mortgage of any homeowner.
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So it came as quite a surprise when the FDIC, under intense pressure from Obama administration, agreed to pay 80% of the losses on loans as claimed by OneWest. As soon as lawyers filed suit on behalf of OneWest, even though OneWest did not own any aspect of the loan or transaction, it made a claim for a nonexistent loss that the FDIC paid 80 cents on the dollar for the claim without verifying if there was any loss.
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Mnuchin became the “foreclosure king” for a while because he had a cash machine, as President of OneWest, based on zero actual investment, in which 80% of all loans slated for foreclosure would be paid to OneWest AND One West would also get the property. Only in America.
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OneWest is now CIT. The point of all this is that like all other securitization claims, it is based upon a false premise and then layered over with lies. So here is what you might do about it, after consultation with a licensed attorney:
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  1. Do not accept any assumption or allegation as being true. This is different from normal foreclosures before securitization where most of the allegations and assertions were true.
  2. Send and keep sending QWR and DVL to all potential parties discovered behind the “Curtain.” Tell them you think they are controlling the situation even though they own nothing and that the designated claimant has no interest in the claim and will not receive a penny because they never receive a penny from any payment from any homeowner, any service, or the proceeds from any forced sale fo property.
  3. Send complaints to CFPB and your State AG consumer division.
  4. File suits that attack all the parties who are interested in the success of your foreclosure — not just the unauthorized ones who are being presented as having a claim by attorneys who have no contact or connection — in most instances — with the named claimant, plaintiff or beneficiary.
  5. If you are in judicial state file affirmative defenses that might otherwise be barred by the statute of limitations if brought as claims. Most claims brought as affirmative defenses are limited as to the amount that can be awarded (the limit is whatever was claimed against the homeowner) but are not barred by SOL. Go as far back as the origination of the transaction as a sham transaction. Those claims live!
  6. Regardless of which jurisdiction is involved conduct vigorous discovery and enforcement. This is where you force the issue and force either a settlement or sometimes the other side simply goes dark and walks away. See my various articles on the details of discovery, motions to enforce, notions for monetary sanctions, motions for evidentiary sanctions and motions in limine. Don’t let up. Be relentless. Don’t litigate to get things not the record. Litigate to win. FDIC does not obtain the note. It has no custodial facility for receiving or storing promissory notes. It can get temporary control over the notes if, and only if, it becomes the receiver of a failed financial institution that owns promissory notes.
DID YOU LIKE THIS ARTICLE?

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

Click

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

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

Tonight! How to use discovery and investigation to break down claims into their false component parts! 3PM PDT. 6pm EDT

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

with Charles Marshall and Bill Paatalo

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

The contrived complexity of the securitized home “mortgage” industry is confounding lawyers, judges, homeowners, regulators and legislators. But it is no more contrived to great complexity than the use by Wall Street banks who were the largest securitizers, of what amounts to accounting tricks accomplished through intermediaries like Black Knight and Core Logic. ON the Chase side there was IBM Lender Processing Services.

Today on the Show Charles Marshall will break this process down with Bill Paatalo, exposing how discovery can be used in either judicial or non-judicial lawsuits to establish that what the public thinks of as the servicer of a loan, collecting payments on same loan, are in fact basically false fronts for mega payment platforms used by the Wall Street banks. This approach explains a lot, including why servicers so often during litigation, cannot provide cohesive or credible payment histories, or show they have real employees responsible for the chain of custody within the servicer of payments, accounting of same, etc.

The bottom line for our audience is that litigants can use the discovery process to force the exclusion of evidence presented by the banks and their faux servicers — not least by taking away the business records exception to the hearsay rule. Which is to say, if the actual requirements of the business records exception are properly attacked through discovery used in ongoing litigation, then the evidence presented by the banks will typically be nothing but hearsay.

This Senate Hearing Video should be seen by anyone who defends foreclosures or any consumer “finance” transaction

see https://www.youtube.com/watch?v=EDw6w0r4yZ8

The only names you see are the ones that the Wall Street banks want you to see. They’re all placeholders, brokers, or conduits. None of them do anything. They don’t lend money, they don’t collect money and they don’t own any debt, note or mortgage. And for those in litigation, they don’t create records at or near the time of any transaction because they did not take part in any transaction — whether it be payments to or from the homeowner.

Those business records exceptions are neither business records nor any exception to the hearsay rule. they should never be allowed into evidence. but they will be if the homeowner fails to object and challenge at the right time in the right ways. Failure to object and challenge in a timely and proper way forces the judge to rule against the homeowner despite the absence of a claimant or a claim. That is not bias — thems the rules.

Any law firm that says it represents a client who has received authority to enforce from one of those ghost companies is leaving out the one allegation that should be required, to wit: that the grant of authority came from someone with the legal power to grant such authority — because it ultimately comes from eh owner of the underlying obligation s set forth in Article 9 §203 UCC adopted verbatim in all U.S. jurisdictions.

The infrastructure we accept as being plausibly real is the basis for plausible deniability and nonaccountability. the current infrastructure depends entirely upon designated creditors rather than real creditors. This is moral hazard as its extreme. It allows for violating the most basic laws, rules, customs, and practices of lending and collection.

The bottom line is that in most instances the transaction with homeowners was a concealed investment by the homeowner into a securities scheme in which the homeowner received neither revenue nor profit. The entire infrastructure was the opposite of what we know as lending and the transaction label as “loan” should be rejected.

The truly ingenious thing that Wall Street did was to conceal from the homeowners that they were investing and guaranteeing their own financial doom. To this day, nearly all such homeowners believe that a loan account was created and that someone had paid value in exchange for legal ownership of the underlying obligation.

People who are or were homeowners want to believe that they were right and that they’re still right in looking at the transaction as a loan because they think they will look stupid if they say otherwise. That is exactly what the Wall Street banks are counting on. And it is exactly what will bring financial ruin to the doorstep of most homeowners eventually. It certainly will prevent them from successfully defending unlawful and fraudulent foreclosures.

DID YOU LIKE THIS ARTICLE?

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

Click

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

FREE REVIEW: Don’t wait, Act NOW!

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

Does the Mortgage Follow the Note or Vica Versa?

The key to all successful foreclosure defense strategies is to test the facts instead of assuming you know.

Most people have their eyes glaze over as soon as you start talking about this. Does the mortgage follow the note or does the note follow the mortgage? The real  question in the minds of nearly every layperson, lawyer, and judge is “who cares?” But because everyone wants to seem as though they are informed and nobody wants to look silly they pretend to know what this is all about and then litigate, judge or rule based upon a set of assumptions that are hidden out of sight and which are wrong.

At the base of this issue, which is extremely important to understanding the legal rights and obligations of parties, is the undeniable fact that in our system of law there are vast legal differences between debts, notes, and mortgages. All three are legal fiction but nearly everyone ignores that simple fact.

As a result, nearly everyone refers to the so-called transaction with homeowners as a loan, debt, note or mortgage as though all those terms were interchangeable. And they ARE interchangeable in everyday conversation because everyone is referring to the same thing.

But when you go to court, failure to recognize the legal differences between those terms will often result in a homeowner making admissions of fact and law that are wrong. Law is entirely about the codification of rules governing behavior, not thoughts. If you think about killing someone you are not violating any law unless you act on it.

In theory all law regarding loans, debts. notes and mortgages are about behavior, not thoughts. But when we get confused, we start arguing law as though it is about thoughts and not behavior.

So in a foreclosure, the object is to recover losses on an unpaid debt owed to the person or entity that is losing the money because of a missed scheduled payment by the homeowner. And because some company is claiming the homeowner has missed a payment and is threatening foreclosure, homeowners almost always revert to the thought that they have a loan,  they failed to make a payment and the company claiming rights to collect and enforce has every right to do so.

By focusing on their own private thoughts rather than practicing what President Reagan called “trust but verify.” Homeowners miss the entire point of foreclosure in the context of claims of securitization. And they proceed to default or lose cases in court because they have a thought in their head that does not match the facts.

My analysis of successful foreclosure defense strategies reveals one simple fact: they all refuse to admit anything and they persist in testing each supposition advanced by the foreclosure mill.

So the “loan”is basically a legal and factual conclusion rather than an actual legally recognized event or behavior in the real world. It means a transaction in which someone loaned you money. That means that the person or entity that gave you the money intended to get a promise from you to pay back the money and that they had the intent to create a loan receivable account.

  • If they didn’t have that intent (regardless of YOUR intent) then the payment is something other than a loan; you should not be thinking that it was a loan just because that is what you asked for.
  • Consumer litigation is filled with debris from what consumers thought they were getting versus what they actually received.

An obligation is what legally arises when you receive money. In order to form a complete enforceable transaction, you must agree to provide service, payments, or property in exchange for the money. The obligation arises regardless of whether any document was prepared, executed or signed.

The debt arises when the law says that there is a debt That means there is some act (behavior) that can be or is memorialized in writing that describes the obligation. In the case of homeowners, the debt is described in a promissory note; contrary to the nearly universal error committed by judges, lawyers, and lay people, the note is not the debt (it a description of the debt).

The note is a description of the debt and the terms for repayment. If the note does not describe or otherwise relate to an actual transaction in which the maker (homeowner) received money from the Payee (or an agent of Payee) then the note describes a debt and obligation that does not exist.

  • This is important for the doctrine of merger of the debt and the note to occur to prevent double liability — once for the debt and once for the note. So the note, to be truly legally effective, must describe the outcome of actual behavior in the real world. If it doesn’t, then there is no doctrine of merger because the note is not describing any actual debt or obligation existing between the homeowner and the Payee on the note.
    • By definition, merger does not apply when the presumed obligation is not related to the Payee on the promissory note. therefore any attempt to enforce the note is NOT an attempt to collect on an obligation.
  • While there are some restrictive circumstances where the note could be enforced anyway, none of them apply to foreclosures because the law in every U.S. jurisdiction insists, as a condition precedent to enforcement, that the claimant has paid value for the underlying obligation (see above).
    • In the context of securitization, this basic element is never present and any allegation, assertion, argument or implication to the contrary is simply untrue.
    • However, if the allegation or implication is present in the court record, failure to test, challenge and object will result in a court ruling that is based upon the presumption that there is an obligation, debt and note that currently exists and which is enforceable.
    • This is not court bias as many suggest. it is the law of procedure. In any organized society there must be rules and the courts are requried to follow them.

The mortgage is a document that is generally described as ancillary to the obligation, debt, and note. But it is generally intended to be included when the word “loan” is used. It is not the obligation, debt, or note. It is a separate agreement stating that if the terms set forth on the note are breached in a specific manner, then the mortgage agreement (deed of trust in non-judicial states) may be used to pursue a forced sale of homestead property to cover or mitigate any losses sustained by the Payee who is also mortgagee or a person or company who has purchased, for value, the title to an existing loan receivable and who has received an assignment of the mortgage agreement.

  • In nearly all jurisdictions, there is a presumption (i.e., “thought”) that an assignment and delivery of the promissory note means that title to the obligation and debt has been transferred and that compliance with Article 9 §203 UCC has therefore occurred.
  • Because of the custom and practice of destruction of the original promissory notes concurrent with the apparent closing of so-called “loan” transaction, foreclosure mills and their clients have taken to replicating them through electronic and/or mechanical means or by claiming them lost.
    • Most allegations of receipt, possession or control over the original promissory note are false. But the presumption is otherwise, which takes us back to the necessity of testing, challenging, and objecting to evidence in a persistent, aggressive manner.
  • Confusion as to the legal status of a mortgage has led to bizarre court rulings that create, for example, an entirely new statute of limitations on the claim to force the sale of the property to pay off the claimed debt.
    • In Hawaii, for example, the courts are now attempting to apply the adverse possession statute (20 years before the claim can be brought) to the collection on a debt or note (6 years).
    • The mortgage is not an instrument that creates or describes the obligation or debt. It does not create the terms of repayment or set the amount to be repaid.
    • In attempting to protect the banks claiming relief in wrongful foreclosure claims, the courts are inventing doctrines that are already causing confusion in a marketplace where certainty is king and uncertainty is to be avoided at all costs. The treatment of a mortgage as the debt, obligation or note for any purpose creates that confusion.

So the moral of the story is that if homeowners want to successfully defend foreclosures, they must pay attention to details in life (behavior), substantive law (what is required) and procedural law (how disputes are settled with finality).

The article below discusses one aspect of this entire area of law — the question of whether the note follows the mortgage or the mortgage follows the note.  for the past 25  years the real answer has been that neither one applies.

see http://bankruptcyresources.org/content/assignment-promissory-note-without-mortgage

 

It is generally the rule in Florida that the transfer of a mortgage note transfers with it the related mortgage. The mortgage note is regarded as the principal item with the mortgage being regarded as a mere accessory. 6 Fla. Jur. 2nd, Bills and Notes, Section 123. Hence the adage “the mortgage follows the note.” . The Restatement (Third) of Property provides in  Mortgages section 5.4(a) (1997) that “[a] transfer of an obligation secured by a mortgage also transfers the mortgage unless the parties to the transfer agree otherwise.”  Florida law is apparently in accordance with the Restatement. The stated objective of the Restatement is to avoid economic waste to the lender and a windfall to the borrower if the note and mortgage are split rendering the mortgage note as a practical matter unsecured. The Restatement cites the case of Carpenter v. Longan, 83 U.S. 271 (1827) which held that “[a]ll the authorities agree that the debt is the principal thing and the mortgage an accessory.”

The Restatement’s exception provides that a transfer of a mortgage note is possible without the transfer of the mortgage if the parties so agree, but the effect of such a transfer would be to make it impossible to foreclose the mortgage unless the transferor of the mortgage note is made the assignee’s agent or trustee with authority to foreclose on the behalf of the assignee of the mortgage note.

Assignment of the Mortgage

The opposite situation is presented if a mortgage is transferred without the transfer of the mortgage note. The apparent rule in Florida is that an assignment of a mortgage without an assignment of the related mortgage note is deemed a nullity and creates no right in the assignee because a mortgage is a mere lien incidental to the obligation it secures. 37 Fla. Jur. 2nd, Mortgages, Section 511. See e.g., Sobel v. Mutual Development, Inc., 313 So.2d 77 (Fla. 1st DCA 1975). Vance v. Fields, 172 So.2d 613 (Fla. 1st DCA 1965).

(305) 891-4055 – Jordan E. Bublick is a Miami Bankruptcy Lawyer with over 25 years of experience in filing Chapter 13 and Chapter 7 Bankrkuptcy Cases.

DID YOU LIKE THIS ARTICLE?

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

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

Signatures Without People: Don’t Believe the Documents: They Are Not real.

Be aware that in many cases no human hand has ever touched the documents. Nobody signed it.

Securitization was always intended to extinguish the debt without barring the ability to enforce it. This legal impossiblity has been treated as “law” for nearly 25 years. 

This is increasingly true as human forgers and robosigners are no longer necessary due to technology advances and the ability of the securities brokerage firms (investment banks) to change the law to allow for electronic filing of essential documents.

Starting in the late 1990’s and ramping up between 2000-2004, documents were usually fabricated by computers and mechanical devices, based upon algorithms written by coders (the only human beings in the process) for use in computers owned and operated by companies like Black Knight, and Core Logic, who serve only the interests of investment banks without actually being in contractual privity with those securities brokerage firms.

The systems have evolved to the point where any document from certain preapproved sources, can be filed electronically without ever having been printed out or even handled by human hands. Whereas at first they were robosigned, the evolution resulted in mechanical autopens being used and now simply computer manipulation of images.

Those documents only exist in digital form, which means that can be entirely fabricated from start to finish without any human being who would or could serve as a witness to establish the legal foundation for letting such documents into the evidence record. In the electronic filing, no mechanics are involved, it is just the result of manipulation of images.

So the goal in litigation is to attack the foundation, which means attacking the witness who is lying about the foundation. The creation of electronically filed documents may be technically legal — but lying about the document by saying it was signed by someone is not a legal foundation or admission of the document into evidence.

The reason the main players have gone to such lengths is that few people, if any, are willing to sign documents they know nothing about. So the system has evolved. The cause of this phenomenon is simple: there is no transaction (i.e., a real event in the real world) that the documents memorialize.

PRACTICE HINT: If you keep in mind that the process of securitization was never designed to securitize homeowner debt and never did securitize homeowner debt, things will start getting clear for you, including your next steps in your strategic plan and tactics. The securitization plan to issue securities. That much is true. But no promise to pay given by any homeowner was ever sold to investors buying “certificates” issued in the name of REMIC trust by investment banks who were doing business in the name of those “REMIC” trusts. Securitization was always intended to extinguish the debt without barring the ability to enforce it.

Lawyers and pro se litigants should avoid any tacit or express admission that documents bearing the name of any entity were prepared by that entity or were prepared on behalf of that entity. They are all fabricated for the sole purpose of enforcing a non-existent debt. Different names are designated in order to distract litigants from the truth. It is always the investment bank (securities brokerage firm) bank acting through sham (placeholder) intermediaries. The goal is more revenue not reduction of a loan account that no longer exists.

 

DID YOU LIKE THIS ARTICLE?

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

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

Research Trust Law in Your State: Trust officer must sign, not agent or servicer.

It’s nice to be in the position where people do research and send it to me. It seems that Florida Statutes explicitly prohibit anyone other than an authorized trust officer who works for the alleged trustee to sign any oath, affirmation or certification.

That means that no agent claiming powers from the trustee can do so. The trustees is already an agent — and by statute the only agent — who can act on behalf of the trust, unless the trust agreement is amended or modified by the consent of the beneficiaries. The trustee either accepts the fiduciary responsibility or it doesn’t. If it accepts it is bound by statute. It cannot delegate those powers and then claim reliance on an agent or third-party vendor.

This means that any Oaths, affidavits, and acknowledgments must be signed by an officer expressly authorized by action of the board of directors of such trust company, association. And that means no third-party vendors, servicers, or agents, or even powers of attorney claiming the status of “attorney in fact.”

The trustee is in effect an attorney in fact. There can be no attorney in fact for an attorney in fact — unless the trust agreement explicitly gives the right to do so, in which case the existence of the trust is at least somewhat in doubt. If it were otherwise this would allow any trustee to divest itself of fiduciary responsibility and give all power to someone unknown or even explicitly rejected by beneficiaries and the original settlor or trustor.

It may therefore be fairly argued that any attempt to delegate such function is a breach of the statute and a breach of fiduciary duty to the beneficiaries of the trust. the homeowner has no standing to claim breach of fiduciary duty, but anyone can challenge any instrument that has not been properly subscribed by the trust officer of the alleged trust.

In fact, I think it can fairly be argued any such instrument is facially void and not facially valid. And that means that no legal presumption or assumption should be applied using the void instrument as the foundation. And THAT leaves the foreclosure mill naked and afraid. They are done. For one thing, they have had no contact or contractual relationship with the named trustee or the trust.

660.35 Oaths, affidavits, and acknowledgments.—In any case in which a trust company or the trust department of a bank or association is required to make an oath, affirmation, affidavit, or acknowledgment in connection with any fiduciary capacity in which it is acting or is preparing to act, the chair of the board of directors, the president, any vice president, any trust officer or assistant trust officer, the cashier or secretary, or any other officer expressly authorized by action of the board of directors of such trust company, association, or bank shall make, and shall subscribe if required, any such oath, affirmation, affidavit, or acknowledgment for and on behalf of such trust company, association, or bank.

History.—s. 3, ch. 28016, 1953; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 133, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 547, ch. 97-102.

Note.—Former s. 660.09.

709.2201 Authority of agent.

(1) Except as provided in this section or other applicable law, an agent may only exercise authority specifically granted to the agent in the power of attorney and any authority reasonably necessary to give effect to that express grant of specific authority. General provisions in a power of attorney which do not identify the specific authority granted, such as provisions purporting to give the agent authority to do all acts that the principal can do, are not express grants of specific authority and do not grant any authority to the agent. Court approval is not required for any action of the agent in furtherance of an express grant of specific authority.

(2) As a confirmation of the law in effect in this state when this part became effective, such authorization may include, without limitation, authority to:

(a) Execute stock powers or similar documents on behalf of the principal and delegate to a transfer agent or similar person the authority to register any stocks, bonds, or other securities into or out of the principal’s or nominee’s name.
(b) Convey or mortgage homestead property. However, if the principal is married, the agent may not mortgage or convey homestead property without joinder of the principal’s spouse or the spouse’s guardian. Joinder by a spouse may be accomplished by the exercise of authority in a power of attorney executed by the joining spouse, and either spouse may appoint the other as his or her agent.
(c) If such authority is specifically granted in a durable power of attorney, make all health care decisions on behalf of the principal, including, but not limited to, those set forth in chapter 765.

(3) Notwithstanding the provisions of this section, an agent may not:

(a) Perform duties under a contract that requires the exercise of personal services of the principal;
(b) Make any affidavit as to the personal knowledge of the principal;
(c) Vote in any public election on behalf of the principal;
(d) Execute or revoke any will or codicil for the principal; or
(e) Exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.
(4) Subject to s. 709.2202, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.
(5) Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed and to property that the principal acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.
(6) An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal’s successors in interest as if the principal had performed the act.

Tonight! How Law Enforcement Got it Right and How They Got it Wrong 6PM EDT 3PM PDT

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For the past 15 years, I have been hearing complaints about law enforcement and regulators who got it all wrong about securitization. The sad fact is that they didn’t get it wrong. They knew what was happening, they initially sought enforcement and then backed off. But they did file actions in court at were the culmination of months, even years of investigation that no homeowner could have financed individually. That is why we do need regulation.

The retreat from full enforcement was the result of a faulty decision-making process that was corrupted by a threat that was so large that nobody could see past it. Nobody actually was willing to investigate the threat or test it. It is the threat of universal financial armageddon.

It resulted in tacit approval of an entirely fraudulent scheme not just in past conduct but also a green light for ongoing fraud through foreclosure, securitization claims, resecuritization claims, and the issuance of more “nominal” value in unregulated securities than all the money in the world 20 times over. Just as a point of reference the value of all such securities in 1983 was zero.

One such case involves the illegal use of the name “American Broker’s Conduit,” which I will also discuss tonight.

And it is instructive to review the complaints filed by regulators and law enforcement because they help the reader understand what I have been saying here since 2007, and because the allegations themselves can be copied and pasted into complaints against not only the investment banks and all their minions but potentially against the individual officers and directors of the companies that were the puppeteers behind the largest ongoing economic crime in human history.

Tonight we look at the case of the People of the State of Illinois v. Nationwide Title Clearing, described in the complaint as a “document production factory.” Plaintiff was represented by Lisa Madigan, Illlinois Attorney General. The facts alleged in the complaint are the product of investigation and findings by a state agency and therefore could be argued as presumptively true because of that. The case was settled for a small fine, which is part of what I will be talking about tonight.

see Illinois vs NTC

Get in the game! Time to Write Your Congressman and Senators on Clawback by FTC

It is axiomatically true that anyone who steals money or property should not be allowed to keep it. It is equally true that anyone who obtained money or property under false pretenses should not be allowed to keep it.

We have laws that enable individuals and government agencies to claw back such monies. This is the way an orderly society deals with thieves and liars.

Those of you who have followed this blog for any length of time know that I have taken the position that federal agencies like the FTC and the SEC have failed to exercise their power to control and clawback the money generated by investment securities brokers who commonly refer to themselves as “investment banks.”

I have also been sharply critical of the FTC in particular for attacking attorneys on the fringe of schemes invented by dishonest “foreclosure rescue” players who were also dishonest with the attorneys whom they lured into their orbit.

But let’s not throw the baby out with the bathwater. Both agencies currently have the power to claw back ill-gotten monies on behalf of the public. The right to do so is now under review in Congress. The supreme court, in its less than infinite wisdom, has restricted that remedy.

The proposed legislation would enable the agencies to pursue those remedies more easily but there are those in Congress who oppose the legislation. Those who oppose appear to be backed directly and indirectly by investment banks who are concerned that their securitization scheme could result in trillion-dollar liabilities.

You need to get in the game. Create the pressure to enable the agencies to claw back any money at any time that was obtained by theft, lies or both. After that we can zero in on the agencies and pressure them to take a closer look at the investment banks.

 

see https://www.reuters.com/world/us/us-republicans-say-not-so-fast-restoring-ftc-power-claw-back-ill-gotten-gains-2021-04-27/

 

Plausible Deniability in Action: See 2010 Deposition of Erika Lynn Lance from Nationwide Title Clearing

I was recently reminded of this deposition. The witness quite innocently indicts the entire foreclosure process as being extra-legal without realizing it. Extra-legal is merely a phrase used by me and some others to describe something that is not prohibited by statute specifically but is (a) not authorized by law and (b) not consistent with existing laws as to intent and content.

Here we have a witness explaining how documents of assignment and transfer are prepared and recorded without any knowledge of any transactions and without any signature or notarization. While the person whose signature appears not the document knows it is being done, he has no knowledge or power to stop it or to verify that it is correct.

To be clear, the law requires something different. No law allows anyone to prepare, execute, notarize or record a document that is not known, for a fact, to be memorializing some actual event in the real world. No signature is valid unless the signor knows that the document is true and accurate as to what is on it. “authorization” to execute an unknown document is no authorization at all and is an excuse for plausible deniability.

see 06-02-10_Deposition_of_Erika_Lance

Q Okay. Have you been required to take any title

14 courses, real estate title courses?

15 A No. They’re not required for this position.

16 Q Do any of the other employees of Nationwide Title

17 Clearing, are they required to take any type of title, real

18 estate title courses?

19 A No, because most real estate title courses don’t

20 actually apply to what we do here on our side.

Q Okay. Why — why don’t you give me a broad

22 description then of what you do at Nationwide?

23 A We do the paperwork for mortgage companies. Most

24 especially we do Assignments of Mortgage, Lien Releases, and

25 document retrieval and research.

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

Q And just looking at the document, if you look at

14 the very top left hand corner, it says, “When recorded,

15 return to CitiMortgage”; is that correct?

16 A Yes.

17 Q But — and that is C/O NTC. Is that Nationwide?

18 A Yes.

19 Q Why is the document returned to Nationwide?

20 A One of the service — the service that we did for

21 CitiMortgage had to do with the recording and the tracking

22 of Assignments. So we sent it to record at the county, and

23 then we have that so that it gets returned to us so we could

24 mark that it came back recorded image the document.

In this particular case, this is an

3 electronically recorded Assignment which means that it was

4 sent via electronic recording and returned to us that way.

5 Q Is that inputted — after it’s recorded, is that

6 inputted into the oracle-based system that you referred to

7 earlier? You said you were imaging the documents?

8 A Yeah. I do image the documents. To answer your

9 question, we have an image repository where we keep track of

10 the documents being imaged.

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

9 Q Okay. So in this particular instance,

10 CitiMortgage was NTC’s client?

11 A Uh-huh.

12 Q And they contacted you to prepare an Assignment

13 of Mortgage; is that correct?

14 A They contacted us to prepare a group of

15 Assignments. It wasn’t just one.

16 Q How many is — let me start all over with that

17 one.

18 In this instance, how many did they ask you — or

19 did they send over at one time?

20 A I don’t have that number.

21 Q Would it be — and I’m not asking you to guess,

22 but if you do have a ballpark, would it have been dozens or

23 hundreds?

24 A Hundreds to thousands but I don’t know in this

25 particular case how many.
I was going to say we’ve done over a hundred

3 thousand Assignments so. . .

4 Q So anywhere from a hundred — from hundreds to a

5 hundred thousand, they would send a request?

6 A They send them in groupings.

7 Q And when you say “they send them in groupings,”

8 that’s requests for Assignments of Mortgages —

9 A Yes.

10 Q — in groupings? Okay.

11 Right underneath the portion we just read,

12 there’s a — a CMI L number.

13 A Uh-huh.

14 Q Do you — can you explain that number?

15 A That’s a CitiMortgage loan number, and the one

16 underneath is the assignee loan number.

17 Q And in this instance, do you know who the

18 assignee is?

19 A Bayview.

20 Q Just under that, on the Corey Assignment that

21 we’ve marked as Exhibit 2 —

22 A Uh-huh.

23 Q — there’s an effective date. How — how is the

24 effective date selected?

25 A It’s given to us by the client.
==================

I don’t know what occurred on it because I was not part of

2 the — the sale or of the agreement between Bayview and

3 Citi. We were hired specifically to do Assignments.

4 Normally, this is an action recording at the

5 county to indicate a sale has taken place or a transfer of

6 loans has taken place from one entity to another.

A I’m trying to figure out how to answer this

16 question. It is my understanding that notes are transferred

17 through a sale agreement between mortgage entities. They

18 record Assignments to put on the record who the current

19 beneficiary is for that note and loan, that mortgage.

20 The — the Assignment itself is not the, to my

21 understanding, the actual sale of the loan. Does that make

22 sense?

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

Q So then let’s talk a little about what Mr. Bly —

8 what he actually does in executing an Assignment of

9 Mortgage. Can you go through that process with me?

10 A Yeah. He is what we refer to as a signer. He is

11 somebody at Nationwide who is designated to execute

12 documents.

13 Q So just can you give me a general idea of what

14 his — his day-to-day activities would be?

15 A He signs and notarizes documents.

Q Does he actually research any of the information

25 contained in the Assignment of Mortgage?
23

1 A No.

2 Q No?

3 A No.

4 Q About how many documents, including Assignments

5 of Mortgage, would he sign in the average day?

6 A A couple thousand.

7 Q And — and this — is he permanently employed?

8 Well, let me ask that question in a different way.

9 Is his — his employer — his present employer

10 and business address is Nationwide Title at 2100 Alt. 19

11 North; is that correct?

12 A Yeah. He’s presently a full-time employee with

13 Nationwide Title Clearing.

14 Q Okay. In the assign — the Corey Assignment of

15 Mortgage, he lists his address as 10000 [sic] Technology

16 Drive, O’Fallon, Missouri.

17 Why is that particular address used?

18 A That has to do with the question on how Bryan Bly

19 can sign as a vice president as well.

THE WITNESS: This is a copy of the Corporate

9 Resolution signed by the board of directors of

10 CitiMortgage, and it appoints Nationwide Title

11 Clearing, “are appointed as assistant secretaries and

12 vice presidents of the corporation.”

Do you know how they decided to name these

7 employees listed on the consent as assistant secretaries and

8 vice presidents of the corporation?

9 A Generally, we — we provide them a list of the

10 employees that we’d like them to list.

11 Q Do you know how the — they’re — because they’re

12 basically being designated as officers of the corporation.

Do you know how they decided to name these

7 employees listed on the consent as assistant secretaries and

8 vice presidents of the corporation?

9 A Generally, we — we provide them a list of the

10 employees that we’d like them to list.

11 Q Do you know how the — they’re — because they’re

12 basically being designated as officers of the corporation.

13 Do you know why that particular designation was chosen?

14 A You — you have to name them as officers in order

15 to sign documents in certain counties. They’re only

16 designated as officers in regards to the actual signing of

17 the documents. That’s — that’s their limitation. If you

18 read the entire document, that’s what it limits them to.

13 Do you know why that particular designation was chosen?

14 A You — you have to name them as officers in order

15 to sign documents in certain counties. They’re only

16 designated as officers in regards to the actual signing of

17 the documents. That’s — that’s their limitation. If you

18 read the entire document, that’s what it limits them to.

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

Q So who generated the Corey Assignment, the actual

11 physical piece of paper?

12 A It came out of our printing area.

13 Q Did — was a person responsible for that, or is

14 that something that’s automated?

15 A It’s automated.

16 Q And what is the name of the automated system that

17 creates the actual Assignments?

18 A Planat Press.

19 Q Can you spell that for me?

20 A P-L-A-N-A-T P-R-E-S-S.

21 Q And where does Planat Press get the information

22 needed to create the documents?

23 A The form is created in Planat Press as I

24 described by Jessica Fretwell in the quality control area.

Q So this — the document, the Corey Assignment,

12 was never a physical piece of paper that was manually

13 signed; is that correct?

14 A That is correct.

15 Q Okay. So Mr. Bly didn’t actually sign the Corey

16 Assignment; is that correct?

17 A Well, he didn’t physically sign it, but he —

18 that meets with the standards for electronic document

19 recording.

Q Yes, ma’am. I understand how it was recorded

7 electronically. I’m just trying to — to determine whether

8 or not Mr. Bly actually signed a physical document or if

9 a — his signature was created by Planat Press.

10 A The signature was included by Planat Press

11 because that document was never printed out.

12 Q So did Mr. Bly review the document before it was

13 sent for electronic recording?

14 A No.

15 Q So — and I’m now — I continue to refer to the

16 Corey Assignment.

17 Mr. Bly never saw the Corey Assignment prior to

18 it being recorded; is that correct?

19 A Correct.

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

Q Okay. Just to go back to make sure that I

12 understand, I thought that previously you mentioned that

13 Mr. Bly signs a couple of thousands of Assignments and

14 releases a day?

15 A Yes.

16 Q So is there another group of documents where he

17 is actually physically signing?

18 A Yes.

19 Q Okay. So we have two groups: One group that he

20 physically signs and then some that — where his signature

21 is just electronically generated?

22 A Correct.

23 Q But with the Corey Assignment, you’re saying this

24 one was electronically generated?

25 A Correct.

Q And how can you tell that this — that the Corey

2 Assignment was electronically generated?

3 A Because I looked it up before I came in here to

4 see how it was recorded, and it’s in what we refer to as an

5 E-record, which is an electronically recorded document.

6 Q So you — if it’s E-recorded, it means it was

7 that it was generated by computer?

8 A Uh-huh.

9 Q And it was not actually signed?

10 A It was not actually physically signed, yes.

11 Q Okay.

12 A Those signatures are counted as signatures for

13 electronic recording.

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

Q What other types of responsibilities does Mr. Bly

7 have as a vice president?

8 A That is it. It’s solely for the execution of

9 documents as listed in Defense Exhibit 3.

10 Q And is he accountable for the accuracy of the

11 documents that he signs?

12 A To whom?

13 Q To either Nationwide or to the — to the company

14 for which he is a vice president at CitiMortgage.

15 A No. Nationwide’s responsible for the accuracy of

16 the documents.

17 Q So in his position as vice president, he doesn’t

18 have any responsibility under the Joint Consent of the

19 Executive Committee for the accuracy of the documents he

20 executes?

21 A No. All he’s responsible for is signing them.

Q Is there any sort of — did Assignments Mr. Bly

23 have to undergo any sort of screening process or training to

24 become a vice president or assistant secretary of

25 CitiMortgage?
41

1 A No.

2 Q Does he have any special qualifications to be a

3 vice president or assistant secretary?

4 A In the capacity of signing the documents?

5 Q Yes, ma’am.

6 A No.

7 Q And does he have any — does he communicate with

8 anyone at CitiMortgage relating to his responsibilities as

9 vice president or assistant secretary?

10 A No.

11 Q So does he have any guidelines provided to him by

12 CitiMortgage, Inc., relating to his executed — execution of

13 his duties as vice president or assistant secretary?

14 A The guidelines that are provided are provided via

15 Nationwide Title Clearing since his only capacity is as —

16 as a signer for them. He has no other capacity.

17 Q So he doesn’t have any other duties as — with

18 Citi?

19 A None.

20 Q Doesn’t receive any compensation?

21 A None.

22 Q He doesn’t have to attend board meetings or any

23 other types of meetings with Citi?

24 A No. It actually says that literally the only

25 capacity he works on — and that’s under the second “Further
42

1 Resolve,” the only capacity he does is as a signer of the

2 documents.

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

Q Does he have to complete any sort of reports to

12 Citi?

13 A No.

14 Q Do you in your capacity as vice president or

15 secretary?

16 A Do I have to give any reports to Citi?

17 Q Correct.

18 A Not personally, no.

19 Q Okay. But I guess somebody at Nationwide needs

20 to?

21 A We send them reports on the progress of the

22 completion of the projects they give us.

23 Q I noticed in — in this particular situation the

24 note was transferred after the loan was in default.

25 Do you know if that’s the — the normal course of
43

1 business for these — these mortgages to be transferred

2 after they’re in default?

3 A I have no idea.

4 Q Is that not the type of information that you’ll

5 have to review prior to — to preparing the documents?

6 A No, we don’t.

7 Q And you — I think you mentioned that you have

8 a — a title company at Nationwide; is that correct?

9 A No.

10 Q There is no title company?

11 A There is no title company at Nationwide.

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

A No. Planat Press is a document generation

13 platform.

14 Q Okay.

15 A That’s used behind the scenes. Release Link is a

16 website.

17 Q Is there a similar website for the preparation of

18 the Assignments of Mortgage?

19 A Not at this time.

20 Q Is that something that you’re working on?

21 A Yes.

22 Q Also there’s a — is there a department,

23 foreclosure collateral management?

24 A There is a — yes.

25 Q Is that a service that — that Nationwide
45

1 provides?

2 A To one client, yes, which is not Citi.

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

Q Do you ever transfer mortgages into trusts?

21 A No.

22 Q And could you describe the mortgage foreclosure

23 technology platform?

24 A We don’t have a mortgage foreclosure technology

25 platform.
46

1 Q And going back to the Corey Assignment, showing

2 you again — this is Exhibit 2, the Corey Assignment, shows

3 Mr. Jones notarizing the document.

4 As I understand, Mr. Bly’s signature was created

5 by Planat Press; is that correct?

6 A Uh-huh.

7 Q So was Mr. Jones’ signature also created by

8 Planat Press as the notary?

9 A Yes.

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

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

 

Banks Make Fake Threats About “True Lender” Language in Illinois Law

see https://www.law360.com/banking/articles/1379222/ex-occ-head-defends-true-lender-rule-as-dems-eye-repeal?nl_pk=174037a3-be4b-4c3d-91af-6410a938b802&utm_source=newsletter&utm_medium=email&utm_campaign=banking

 

This is a lot like 2008. But then the banks threatened to pull the plug on all trading platforms for bonds and other securities. They managed to convince a large number of decision-makers in the nation’s capital and in State capitals around the country that if securitization “infrastructures” were compromised, the entire financial system would collapse thus bringing the entire economy to a halt and the end of civilization as we knew it.

It was a lie then and it is still a lie. But everyone in legislation, regulation and adjudication bought it hook, line and sinker.

The truth was that the investment banks and found a brand new toy and didn’t want to lose it. They were making more money than was ever conceived possible. Starting in 1983 zero, the shadow banking market is now estimated to be trading “contracts” (securities) with a “nominal” value of more than $1.4 Quadrillion dollars which is around 20 times all the money in the world.

Small wonder that central banks are virtually powerless to control monetary policy or effects. Not even the U.S. Federal reserve controls even 1% of that amount.

So after 25 years of plain pulp fiction about the use of the word “lender” Illinois is the first state to try to address that term and bring it back from the twilight zone. It seems that Illinois thinks that a lender is someone who has paid money in exchange for a promise to pay it back. And even more strange, Illinois thinks that such a true lender must comply with lending statutes.

The investment banks are of course outraged. If states are going to require that the lenders are the people who paid the money and who must comply with lending statutes, then what will happen to securitization? The answer is simple. It can continue but only with disclosure to investors what is really happening and that would mean they would need to stop referring to homeowners as borrowers.

So the latest lie is that the banks will stop lending bringing the financial sector to a halt, crashing the economy and destroying society — or will it? Illinois wants to know what is going on in its state. Investment banks don’t want to reveal that. It is all very proprietary trade secret information mainly in the same sense that organized crime has proprietary trade secrets.

So they’re spinning up the idea that this is bad for “borrowers” who are actually investors in a scheme in which they get nothing and that lenders will simply stop lending in an environment where the truth must be told. Let’s see what happens.

see https://www.troutman.com/insights/new-illinois-predatory-loan-prevention-act-leaves-lenders-and-borrowers-with-uncertain-future.

Securitization made simple for homeowners

The bottom line is get over it! And stop thinking that because you think you must have done something wrong you should lose your house. If you do that you’re only pretending you know what is happening and that you’re familiar with intricate highly sophisticated financial “innovation” on Wall Street. You are pretending to know the law. And you are feeding into a myth that is dragging down our national economy. 

The most difficult part of understanding this entire scheme is that at the start, in nearly all cases, it was only the homeowner who was seeking a loan agreement. Nobody else was seeking to become part of any loan agreement, except for purposes of fabrication to sue for payment of a nonexistent claim.

The originator was only interested in providing the service for which it was retained — i.e., license to use its name as “lender” despite the fact that it was not a lender.

Even if the originator was acting as an agent for the investment bank (which it was not) the investment bank had no interest in being a lender either. The entire purpose of the scheme was to issue securities and to sell as many of them as possible.
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The added purpose was to make those securities work for the investment bank in such a way that when homeowners stopped making payments for any reason, that would provide an excuse to pay investors less money than what they were originally promised. In addition, it would trigger the payment from counterparties on those securities (contracts) that were made to the investment bank and never found their way to the real parties in interest.

The real parties in interest were the investors. And despite the perception and belief by homeowners that they were borrowers, the only possible factual and legal conclusion is that the homeowners were investors in a scheme in which they received nothing.

Normally that would be difficult to prove or reveal through discovery. But in this case, it is actually very simple.
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The law provides every consumer with the right to answers to very specific questions about any debt, including whether the debt exists, who owns it, and who has authority to enforce it. The law is also very specific about who owns the underlying obligation for the claim of debt: it can only be a person who has paid value for it.
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The law is also very specific about when you can ask such questions. And the investment banks have a very specific playbook for people who ask questions. Those people get put on the back burner, while the ones who don’t ask questions get foreclosed by default.
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Ask anyone who has handled these cases. the answer is always the same. If you contest the foreclosure in a timely and proactive manner, you will most likely (at the very least) delay leaving the home for as many as 15 years. If you don’t contest it, you will be out within a few weeks or months.
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And so the final point of this article is shame. Almost everyone facing foreclosure feels stigma and shame. the normal reaction is to hide and forget. I have heard literally hundreds of stories where the spouse did not know of the foreclosure until the sheriff came to the door. By then it is nearly impossible to do anything about it.
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The bottom line is get over it! And stop thinking that because you think you must have done something wrong you should lose your house. If you do that you’re only pretending you know what is happening and that you’re familiar with intricate highly sophisticated financial “innovation” on Wall Street. You are pretending to know the law. And you are feeding into a myth that is dragging down our national economy.
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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

Click

Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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*
*
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

Should we be paying more attention to E-Discovery?

Investigation reveals that most of the documents are prepared, executed, notarized and recorded without human hands.

Electronic Discovery is a fairly new practice area in trial law. I recommend that attorneys in particular pay careful attention to new developments in E-discovery. Although you can ask for a print outs or copies of documents that are held, this will only produce a hard copy of something that was automatically prepared by machines.

In the context of foreclosures, this is the ideal context in which to involve plausible deniability for “mistakes,” “errors,” or fraud. Since no human being did it, civil and criminal responsibility for filing foreclosure papers on a nonexistent claim will most likely fail, unless supported by a compelling docket of evidence.

So I am coming to the conclusion that it would be wise to conduct discovery on the source code and meta-data that was used in the production, execution, notarization and recording of documents. That needs to be combined with inquiries into the source of authorization for the algorithms that were employed. I’m pretty sure that judges are convinced that the documents have been executed by human hands, authorized by human beings. When they find out that this is not the case, they might be more open to challenges.

Legal Death Trap: About Those Letters You Get from the “Servicer”

THIS IS ABOUT MONEY, NOT DOCUMENTS

When a homeowner starts asking questions about the existence, ownership and authority over their debt, note or mortgage, they will at best be misled and probably be the recipient of bald-faced lies. A typical exchange results in the receipt of a letter that is unsigned, with no human name stated, and no title. 

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So first of all the letter is unsigned, which advances plausible deniability. There is no human name, title or signature, electronic or otherwise.

*

Second, this might well have been created by some company other than the alleged “servicer” using the easily created “letterhead” you see. Remember that saying you are King of the World does not make it so. ANd saying that you are a “Servicer” implies a large number of facts that are probably all untrue. that is the essence of “misleading” saying something that might be true in order to imply a whole bunch of stuff that is not true.
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No company is the servicer of your loan unless it is receiving and disbursing funds on behalf of a principal (the creditor) who has paid value to someone who owned the underlying obligation in exchange for a document of conveyance transferring the ownership of the underlying obligation.
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Any transfer of a mortgage that fails to be accompanied by a transfer of the underlying debt is a legal nullity. Any assignment of a note that fails to be accompanied by a grant of authority to enforce from someone who has paid value and owns the underlying obligation results in the status of “possessor” without rights to enforce, and not holder or holder in due course.
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Third, the unsigned letter claims that the “servicer,” is also the “owner of the loan.” That could mean several different things thus further advancing plausible deniability. If I have received an assignment, even if it was invalid, and I claim to won the mortgage, can I claim to be the owner of the loan or not? What difference does it make if I make such a claim and it is untrue?
*
So first of all do not give such a letter any credence at all and recognize that it will later be used against you if you don’t object right away. It subtly establishes the existence of the “loan”, authority to administer, collect and enforce the “loan” and even provides a foundation for ownership of the “loan.”
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Remember that a loan is not a loan if there is no lender and no loan account receivable. It is even possible for the debt to exist, but not as a loan if you never had a lender. You never had a lender if the party you named as Payee/mortgagee did not pay you money on its own behalf. If it was a broker, you don’t have a loan. You might have debt but it isn’t a loan because the law says so. A lender must comply with disclosure requirements under lending statutes. The broker never complied because it lacked information to make such disclosures. the broker never had any entry on its ledgers of the receipt or disbursement of money for your transaction. there was no “loan” in such circumstances.
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If you want to use the letter you will need to establish the foundation. That means in discovery or testimony someone says the letter was sent by, for example, Ocwen or Rushmore, and that the assertions are true. And they say that the assertions are true because … (whatever they are spinning). In the final analysis, the witness, if your ever you get one, will say that the letter was sent because it was ordered to be sent and that they have no idea whether Rushmore, for instance, ever had the authority to send it. Who gave the order. The witness will not say or doesn’t know.
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But the letter can be used if the purpose of using is simply to show that it was received by you and not to prove that the assertions are true or false. For example, if one party is named as the claimant and you get a letter like this saying that someone else owns the “loan” you can say you’re receiving inconsistent information.
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You want to be careful about one thing in particular, though. The reference is to a “loan.” So you might want to write back and ask them what they mean by “loan.” for example, do they mean that they have paid value for the underlying obligation and that they have received a document of conveyance of ownership of that obligation? Or do they just mean that they have documentation?
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They are playing games with you. You should take issue with the verbiage “loan” until they can establish the name of the entity that carries a loan account receivable in your name as an asset entry on their general ledger. It’s always down to the basics. Be relentless. Don’t back down. If you ever had a legal obligation, it was extinguished during securitization. Concentrate on the money trail. But use their paper trail to show any inconsistencies in their claims.
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As for using this in your lawsuit, yes you can do that, but you need to be careful in your set up because the real facts are not obvious from the face of the letter. An impartial judge looking at the letter would ask “What else did you expect them to say?” You need to show how such correspondence is intended to deceive you and wear you out.
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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

Click

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

Tonight! How the bad guys get fake stuff into evidence and what you can do about it! 6PM EST 3PM PST

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Most people give no thought to the elaborate scheme in which documents are created exclusively for use in civil court actions. The fact that such a statement is true is reason enough to exclude such evidence, but the failure of almost every homeowner and lawyer to timely and properly object is the reason it comes into evidence anyway.

No document prepared solely for court can be admitted into evidence in the court record. The reason is simple: it obviously is not a document memorializing or giving evidence of the existence of a transaction. It is, instead, a document reporting the existence of a transaction by a person who by definition is knowledgeable about and has an interest in the outcome of litigation but who has no interest in the outcome of the nonexistent transaction — other than the fee or salary paid for preparing, executing or testifying about the false document.

But once proffered, the court must accept it unless it is obvious that the document is plainly absurd and irrelevant to the issues before the court. And the presence of such evidence in the court record requires the judge to enter findings of fact and conclusions of law favorable to the claimant, who probably does not even exist.

Given the fact that there are no business or monetary transactions in the real world, how does any document get admitted into evidence when it purports to be a memorialization of nonexistent events between either nonexistent or disinterested parties? How does the foreclosure mill get such a fabricated, forged, backdated, and false document into evidence? More importantly, how does the homeowner prevent such miscarriage of justice?

In foreclosures, the point is NOT whether there is a loan or whether the homeowner owes any money. The point is whether the named claimant (plaintiff or beneficiary) can prove that they own the underlying obligation because that claimant paid value in the real world in exchange for ownership of the underlying obligation. The issue is not whether the “loan” was in”default.” The issue is whether the claimant has any legal basis for receiving any relief. 
 
Laypeople and lawyers who are not experts in the law and rules of evidence fail to object or fail to properly state the grounds for objection for allowing the document to be entered into evidence. The trial judge is then REQUIRED to accept the proffer into evidence. And that one event is usually the point where the homeowner has lost and the fakers have won. And as I have repeatedly said that result is not biased. It is the result of bad litigating. 

Cost of Doing “Business”: Media Reports Vanish as Settlement Figures Total Hundreds of Billions of Dollars

If the investment banks are stopped at some point, they will scream because someone took their favorite toy away — not because they lost any money. Quite the contrary — with the trillions they have stashed all over the world it will be decades before they ever run out of cash.

JPMorgan, Four Whistleblowers Resolve Foreclosure Fraud Suit

The article is on Bloomberg published April 13, 2021. Then it vanished and there have been no further reports about it.

This is completely congruent with my experience. In many cases, there have been settlements with JPMorgan in lieu of Deutsch Bank or Deistach National Trust Company. Sometimes a report surfaces only tog et quickly buried. Sometimes even the case file i “expunged” from the court record. In all cases, the whistleblowers or homeowners execute what claims to be a finding nondisclosure agreement.

So when homeowners and prospective foreclosure defense lawyers look for any history of winning against the big 5 they find nothing. But so far as I can tell, using the back of a napkin, the settlements on fraudulent foreclosures have totaled more than $650 Billion. In many cases the settlement involved Federal and state agencies alleging fraud, fabricating false documentation, forgery and robosigning.

And yet in court, the basic rule of evidence is entirely ignored or overlooked — the credibility of the person who is giving the evidence. Most U.S. jurisdictions allow legal presumption to arise from what appear to be facially valid documents. Closer examination of those documents often reveals defects, so they’re not facially valid. But even if they were facially valid, the acceptance of such documents into evidence without corroborating evidence that sets the foundation for admission is, in my opinion, legal malpractice.

All of those documents are being preferred by parties who have tacitly or expressly admitted that they regularly fabricate and lie about such documents.

At some point in history, there will be a general reckoning and acceptance of the fact that Bernie Madoff did not pull off the greatest economic crime in human history. His distinction is that he got caught. His total crime was around $60 billion most of which was returned to investors. And now he is dead. But the major securities brokerage firms calling themselves “investment bankers” took at least $60 trillion only part of which went back into the system.

If the investment banks are stopped at some point, they will scream because someone took their favorite toy away — not because they lost any money. Quite the contrary — with the trillions they have stashed all over the world it will be decades before they ever run out of cash.

The Key is the Money Trail — Not So Much the “Break” in the Chain of Title

There is probably much more than just a break in the chain of title. In all probability, the underlying obligation that presumably supports the claimed debt, note and mortgage, was extinguished. If there is no debt then there can be no transfer of the debt — even if someone signs a document that says otherwise.
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The law says that a transfer of a mortgage interest is a legal nullity if the document was not signed as part of a transaction in which the assignee paid value for the underlying obligation. Someone must have paid value for the debt, note, or mortgage and then received a transfer document from someone who owns the debt, note, or mortgage.
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And it is crystal clear in all states that a transfer of a mortgage interest without a transfer of the debt is a legal nullity. A legal argument cannot overcome that simple legal fact. And documents sporting language implying otherwise are void because they are violative of statutes, common law precedent, and against public policy as passed the state legislature and signed into law by the Governor.
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The transfer of ownership of the underlying obligation (the debt) must also occur with a transfer of ownership of the note. The only exception is that if you want to enforce the note, you must be in possession of the original note (not a copy or mechanical re-creation) AND you must have received authorization to enforce the note from someone who was entitled to enforce the note.
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That authorizing “person” could have been a previous “holder,” but ultimately the authority for enforcement of the note can ONLY come from one “person,” to wit: the owner who paid value for the underlying obligation. It can’t come from anyone else and this is a factual and legal point that is missed by 99% of all lawyers and judges. But once you point it out to them, they will agree — particularly when you produce case authority in your jurisdiction.
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So the trick is to trace back that authorization to find someone who owns the underlying obligation and who gave that authorization. You do that through timely filed discovery demands that are specifically related to the issues in the case. You will need to remind the judge that this is not just a foreclosure case. At the root of it is an attempt to collect a debt owed by the homeowner to whoever is claiming the right to collect it.
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So if there is no debt in the form of a loan account receivable on the ledger of the company on whose behalf the foreclosure is sought, then there is no legal basis for enforcement.
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Similarly, if there is such a loan account receivable and therefore the debt exists, then the claimant MUST be the person who has paid value to someone who owned the debt. Article 9 §203 of the Uniform Commercial Code adopted verbatim in all U.S. jurisdictions specifically and expressly sets forth a condition precedent that must be satisfied before anyone can seek enforcement, to wit: payment of value for the underlying debt.
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The error committed by homeowners, lawyers, and judges is that it is presumed that an allegation of possession means there is actual possession of the original note. It is presumed that possession of the note means that the owner of the underlying obligation has given the authorization to enforce either directly or through some authorized agent (i.e., an agent authorized by the debt owner and nobody else).
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Foreclosure mills will gleefully present authorization, but never from anyone authorized to give the authorization. So here again is an item in issue if you made it an issue in your answer and/or affirmative defenses. therefore you have every right to serve timely and well-phrased specific demands for discovery in the form of interrogatories, requests for admission, and especially requests to produce.
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But you need to expect and to know that you will never get an answer. That is only valuable if you pursue it. If you drop it, you might as well concede the case.
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If you don’t make something an issue, the court has no right to rule upon a late argument that presumes that the issue was raised. If it wasn’t raised then it is gone. Many homeowners and lawyers have chalked up such a ruling to bias, when in fact, the judge had no choice but to ignore arguments on issues that were not in play. And no issue is in play unless it is framed by the pleadings.
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It is presumed that the execution of an assignment of mortgage or an endorsement to a note means that a business transaction exists in which there was the payment of value for the underlying obligation, the debt, the note or the mortgage.
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But in fact, no such transaction exists because the “loan account” was or became a fictional or imaginary asset somewhat like the particles in physics that come in and out of existence. By the time it gets to enforcement, the “loan account” has long since disappeared, along with any legal authority to administer, collect or enforce it.
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So the job of the homeowner or homeowner’s counsel is to challenge the foreclosure mill to produce evidence of an actual transaction rather than implication or presumption of a business transaction in the real world.
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An assignment implies that the underlying obligation was bought and sold as part of a purchase transaction, which for legal purposes, can only mean that someone paid something to the owner in exchange for ownership of the asset.
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Again discovery demands made timely and properly are the key to moving the needle from the conclusion being “inevitable” and against the homeowner to “questionable” and finally to “insufficient” to establish a prima facie claim.
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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.
Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.

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Neil F Garfield, MBA, JD, 74, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
Please visit www.lendinglies.com for more information.

Gary Dubin, Esq. Takes on the Entire State of Hawaii

Dubin was disbarred by the Supreme court for the State of Hawaii. I have previously written about his situation because, in my opinion, he is the target of investment banks who have an out-sized influence on government.

I also believe that the process by which attorneys are disciplined is defective two respects:

The first is that the litigation of “complaints” does not conform to the usual standards of due process resulting in an unequal imposition of presumptions in professional licensing.

The second is that the discipline of lawyers often mirrors the phenomenon of administrative laziness. Dubin’s disbarment was the result of a virtually verbatim adoption of the complaint filed against him by bar counsel — all the way through the Supreme Court. The recitation in the final orders and findings do not bear a close resemblance to the facts that allegedly form the foundation of the claim against him.

When I represented lawyers and other licensed professionals defending against allegations of license violations I found that it was almost too easy to win on behalf of the accused professional. The first reason why the prosecuting attorney lost is that the allegations were plainly wrong on the facts. The second reason was that the prosecuting attorney often lacked trial skills and was accustomed to steamrolling over the accused.

But then there were the politically motivated cases that were much harder to defend because there was an intent to “take out” a successful accused. I remember in particular one such person who had conceived of a very good business plan in which emergency electrical service could be delivered quickly and affordably. The result was a concentration of business that excluded electricians who were not part of his network. The accusations against my client were horrendous. But all he had done was come up with a better plan. We did win the case, but they managed to impair his business plan anyway. The grievance committee was protecting the turf of the “membership” of the group of electricians that were licensed. They were not protecting the public.

Dubin’s case is even more insidious, in my opinion. He is 83 years old and has been in practice for decades without any blemish on his record — a feat that exceeds my own record. He has been a consistently good advocate for his clients and has often made new law on appeal, being licensed in Federal and State jurisdictions including California. He has been especially effective in representing homeowners in foreclosure cases — either winning at the trial level or winning on appeal. Although I mostly won my cases at the trial level I have yet to make the inroads in law on appeal that Dubin has accomplished.

And yet it came as no surprise when he was accused of all sorts of dastardly things by the grievance committee of the Hawaii Bar Association. Dubin presented a credible threat to the status quo in illegal foreclosures — which consisted of pretending the foreclosures were legal.

Although the proceedings are considered quasi-criminal they are not judicial and they don’t follow the normal rules of evidence. I examined the case against Dubin. In my opinion, there either was no case, or at most, they might have the foundation for a minor discipline like a guidance letter or even a private reprimand. The rubber stamp orders and rulings make it clear that he was steamrolled by hidden political forces. Those forces could have been exposed in real litigation but any meritorious defense was suppressed by the procedure used to impose discipline upon him.

So I am watching as Dubin has filed a new case against multiple parties alleging violations of due process and equal protection.  Like me, he is not timid about his approach when he believes he is right. I like that. He is alleging that

(1) Neither the Hawaii State Constitution nor the Hawaii State Legislature has given the Hawaii Supreme Court the legislative regulatory power to license and to discipline attorneys for conduct occurring outside Hawaii courtrooms nor is it historically inherently so endowed,

(2) had that power been given to the Hawaii Supreme Court constitutionally or historically or legislatively delegated, the manner in which it has exercised that power violates the equal protection guaranty of the United States Constitution, treating different professions unequally, especially as to evidentiary and appellate rights, and

(3) the manner in which the Hawaii Supreme Court has been exercising that power, usurped or otherwise, violates the due process guaranty and in Dubin’s case also the freedom of speech guaranty of the United States Constitution.

I think he has filed a complaint that is both meritorious and that has the capacity to upend the process by which lawyers are disciplined. I applaud the effort and I invite all interested parties to follow his case closely.

Lying and Signing for Dollars: How It Became Big Business to Provide Fake Documents for Foreclosures

Long before the term “robosigning” was coined I had come to the conclusion that investment banks on Wall Street were (a) not the owners of loans and (b) were faking the transfer of loans. I later came to the conclusion that the loans were nonexistent either at origination or later upon “acquisition.” the “acquired” loans were inf act paid off through conduits created by Wall Street, using borrowed money; but they were not purchased nor accounted for as assets of any kind, much less accounts receivable as is customary for loans.

Specifically, I had stumbled into a survey that i had not meant to conduct. In assisting homeowners with foreclosures there was a clear difference between asking for the documents from a “loan” that was considered “current” and a “loan” that was considered to be in “default.” When I asked for documents on a “loan” that was considered “current” I received nothing.  When I asked for documents on a loan that was considered to be in default or delinquency. I received assignments, allonges etc.

It took me a while to grasp what was happening but as I did hundreds of these, the difference was stark and always true. The documents were being sent to me only on loans declared to be delinquent or in default. So that meant that they were either withholding the documents (illegally) for “current” loans or they didn’t have the documents on “current” loans.

Eventually, I concluded that the documents were being created when the “loan” was being prepared for foreclosure. Those documents were signed by employees without any knowledge or authority to transfer any assets, much less a six-figure loan. And that led me to conclude that there was no consideration for the paper transfer, which legally means there is no legal transfer and that the ownership of the “loan,” even if it existed had never moved.

Tom Ice was one of the successful foreclosure defense lawyers in Florida and he was busier than I was in actually litigating these issues. He kept proving, time and again, that the documents were fake — i.e., that they contained false information about nonexistent business events and that they were signed by people who neither had the legally required knowledge of the transaction nor the authority to execute any paperwork about it.

This is a copy of part of a transcript of a 2012 deposition conducted by a member of Tom Ice’s law firm in Florida. The witness is Erika Lance. Besides the obvious conclusion that people were signing a document that memorialized events about which they knew nothing, it reveals the obvious conclusion that these people in NTC and other “document preparation” firms and in law firms and companies claiming to be servicers had no concept of the fact that what they were doing was both illegal and fraudulent.

 

see https://www.icelegal.com/files/06-02-10_Deposition_of_Erika_Lance.txt

Q Can you describe the list of names for me?

10 A The list of names are employees of Nationwide

11 Title Clearing that we give to them to — to have them

12 authorize them to be signers as vice presidents or assistant

13 secretaries. The list is generated to insure that depending

14 on the volume of loans that have to be executed we have

15 enough employees in Nationwide to execute all of those

16 documents. Included in there, are people who have other

17 capacities at NTC, but in the time of overload, could go

18 assist in that particular area.

19 Q So the people who are listed on Exhibit 3 are

20 people who could act as vice presidents or assistant

21 secretaries, but each of these persons are full-time

22 employees of Nationwide; is that correct?

23 A Correct.

DID YOU LIKE THIS ARTICLE?

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

Click

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

FREE REVIEW: Don’t wait, Act NOW!

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

Successful Discovery Strategies

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

Somewhere between questioning everything and questioning nothing lies the law. The law consists of duties, rights, and obligations of everyone plus a process of determining if there was a breach, whether it mattered and what to do about it.
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Successful foreclosure defense is entirely about establishing a breach by the foreclosure mill. The best way to do that is usually through demanding discovery
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Successful foreclosure defense is about seeking answers that you are entitled to ask when you are allowed to ask them, and how the questions are required to be asked. It is not about getting answers. If someone sues you to collect on a debt, you are entitled to ask, What debt? How do I owe it to you? Who are you?
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If you don’t get answers or adequate responses, you are in the driver’s seat. You can either apply the brakes or coast along until you lose. But If you apply the gas, you can run the foreclosure mill into a corner. Because they have no answers.
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People lose their homes because they assume they know the answers. They don’t. None of them do. Lawyers inadvertently allow their clients to lose their homes because they were afraid to ask the right questions and then follow up. Lawyers do that because they think they know the answers and wish to avoid them.
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Tonight we discuss the who, what, where, when, and why of discovery and why it usually leads to homework victory.
  1. Make absolutely certain that you don’t admit something that is against your interests. 
  2. Start as early as possible. 
  3. Avoid using the nomenclature of the opposition, to wit:
    1. Loan
    2. Servicer
    3. Trustee
    4. Trust
    5. Certificates
    6. Certificate holders
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