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GTC Honors, Inc.

Phone: 954-451-1230

Email: info@lendinglies.com

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

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

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

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

Ask about our CONSULTATION SERVICES and LITIGATION SUPPORT.

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

Scams Against Elderly and Other Distressed Homeowners

In our wild West society it is possible  for almost anybody to scam almost everybody. This is because most people lack the information to know whether an offer is real or fake. As a result they tend to “hire” people who tell them what they want to hear.

And in foreclosure situations, what they want to hear is that the problem is over and they won’t lose their house — which means that they won’t have the stress, shame and embarrassment of losing the house together with all of the stress associated with forward movement — financial instability, no credit, frequently start dating again because their marriage was destroyed, and dealing with their kids trauma that goes with finding a new place of live. That is all they want to hear so that is all the scammers tell them.

So here is the plain unvarnished truth. Yes it is possible to save the home. No there is nothing that works every time. So here are some basic rules and guidelines in dealing with prospective vendors who tell you they can solve your problem.

  1. They can’t solve your problem and if they say they can they are not being truthful. If they are not a licensed attorney in your jurisdiction they can’t even try to solve your problem — but they could help.
  2. No report from anyone will solve your problem. Only the correct use of a well researched and well written report in filing documents in court including pleadings, motions, and discovery will give you traction, but no guarantee of success in court.*
  3. Yes it’s true that most foreclosures are fake but courts are not initially receptive to that narrative and even when forced, the best success rate is around 65%.
  4. If you are not willing to invest some serious money into your defense you’re unlikely to come out with a result you deem successful.
  5. Expect setbacks. Court is a contact support. You give and you get.
  6. Commit to the long haul. The banks have given express instructions to wear down homeowners before they will even consider settling. Even if they know you can and will win they press you as long as possible in order to discourage you and anyone like you from challenging their illegal scheme.
  7. Avoid “just do this” schemes. While many theories abound, none of them are well founded in actual trial practice and the promises of solving your problem with a single bullet are false. But you  can employ the theory behind such schemes as part of your overall strategy.
  8. If the banks say it through lawyers or so-called servicers they are lying. Don’t believe anything they say, right or do. In practice this means that you should not even assume that your debt exists, much less that anyone owns it.
  9. Any report that admits the existence of the loan or that anyone is a lender, servicer or trustee is probably a false report and is worse than being wrong. it actually is admitting key elements that make it possible for the foreclosure mills to invoke foreclosure procedures using fictitious names and nonexistent claimant for the sole purpose of obtaining revenue and not for restitution of what you think is your unpaid debt.
  10. Only lawyers who actually have conducted bench and jury trials are actually trial lawyers no matter what they say. And only lawyers can actually achieve anything unless you are a luck pro se litigant who is very persistent.

* A word about reports. The best report in the world will do you no good if the information and conclusions in that report are not submitted in accordance with the rules of procedure and rules of evidence. Yes it contains information that completely destroys the case against you if it is accepted by the court and presented in a credible and persuasive manner which usually means using the inconsistent or vague documents against your opposition. No it doesn’t end there because the opposition will argue the use of legal presumptions even though they lead to a false result. If you don’t know how to fight back they will win anyway.

See Zimmer_Sharp-as-a-tack_When-mortgage-fraud-becomes-elder-abuse_Plaintiff-magazine

FREE REVIEW:

If you want to submit your registration form click on the following link and give us as much information as you can. 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 TO ORDER CONSULT (not necessary if you order PDR)
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. 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.
Please visit www.lendinglies.com for more information.

Quiet Title — Not as Easy as It Sounds But It Could Lead to Successful Strategies and Tactics

The failures to disclose material facts providing the real context of the “loans” deprived borrowers of choice between lenders and deprived them of the opportunity of bargaining for terms that were based upon the economic reality — that the main point of the loan origination was not the loan but rather the sale of unregistered securities. THAT is where the profit is and was and without that the loan would never have occurred. None of that profit was disclosed.

Contrary  to popular myth quiet title is not a magic bullet.

It’s a good move only after you have destroyed the case against the homeowner and only if you direct it at only the parties who have made claims against the homeowner. So it’s really an action for a declaration from the court as to the rights and duties of the parties to the case.

You can’t file a case against potential creditors unless you do service by publication and that can be tricky. And you would need to prove convincingly that the mortgage should never have been recorded in the first place. Securitized mortgages are subject to possible reformation by the real parties in interest who paid value in exchange for ownership of the debt. And theoretically at least, they exist — even if they are currently legally unable to enforce the debt, note or mortgage.

And while I am at it, let me remind the reader again that the following terms are all different in that they all mean different things:

  1. Debt — a legal obligation defined by common law and the Uniform Commercial Code
  2. Note — a legal instrument which if facially valid creates a legal obligation separate and distinct from any debt
  3. Mortgage — a legal instrument which if facially valid creates a lien or encumbrance upon land as security for the performance of either (a) a debt or (b) a note or (c) both a debt and a note.
  4. Deed of trust — same as mortgage except that mortgage requires due process of judicial foreclosure whereas DOT is an agreement to skip judicial foreclosure. [My opinion, not accepted by anyone one the bench, is that as soon as the nonjudicial foreclosure becomes contested, the action MUST convert to judicial in order to satisfy due process. ]
  5. “Loan” means nothing. It is used in general references to mean something in relation to the above terms without ever being specified. However the loan agreement generally means the note, the mortgage, the disclosures and the Federal and State lending laws that are incorporated either expressly or by common law doctrine. The existence of a note and mortgage is generally regarded as raising the legal presumption that a loan of money has occurred between the named originator and the borrower. That is a rebuttable presumption that generally only occurs through discovery during litigation.
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Here is the way to look at it from a legal perspective.
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The mortgage or deed of trust generally expressly state that they secure the obligations stated in the note. And the note creates a liability even if there was no consideration. This liability (arising solely from execution of the note) can be defeated if you can reveal lack of consideration during litigation. But the problem is that most borrowers received a loan of money —- or received the benefits of payments on their behalf for example to prior “lenders”, sellers etc.
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Technically speaking the mortgage or deed of trust does not state that it secures the debt. It says that it secures the obligations under the note. So theoretically if the debt is not owed to the “secured party” (“lender”) then it secures nothing and the people who advocate quiet title are right that this could mean the mortgage would be expunged from the title record or canceled or both. AND that in turn would mean that the mortgage should never have been recorded in the first place.
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But in the real world, it is highly unlikely that — after receiving financial benefits under circumstances where the homeowner intended to use his or her house as collateral, that any judge would simply say that the mortgage or deed of trust was void ab initio (from the start).
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More likely the judge would issue a declaration that the parties who were seeking to use the security instrument were not entitled to do so but that the mortgage could be subject to enforcement if it was the subject of reformation in which the right name was recited as mortgagee under a mortgage or the beneficiary under a deed of trust. So given the bias of courts, it seems very unlikely that full quiet title would be granted because it would quash the rights of unknown third parties who did actually pay value.
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Which brings us to the hidden question. Although there were certainly people who paid value, what did they buy? If they (investors who bought certificates) didn’t buy the debt owed by the residential borrowers, then the fact that they paid value becomes irrelevant.
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And so we next move onto the investment bank that sold them the certificates. The certificates essentially were IOUs. They could be described as bonds or notes. They represent an unsecured liability owed by the investment bank (dba an implied “trust”) to the investors who bought the certificates.
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So investors did not buy any interest in the debt, note or mortgage and many times the indenture to the certificates expressly waives any such right, title or interest.
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That leaves the investment bank posing as underwriter but actually acting as issuer of the certificates. So the money from sale of the certificates is the money of the investment bank.
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Then through a variety of conduits, the investment bank puts just enough money on loan closing tables as is necessary to generate —at least on paper — the dollar liability that is owed by the investment bank to the investors. But the borrowers execute no documentation and receive no disclosures to the effect that the investment bank was the actual lender through table funding or otherwise.
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This money is generally 20%-30% less than the amount of money paid by investors for the certificates. So right away the investment bank has received a yield spread premium of 20%-30% on invested dollars — which is realized only when the loan is closed. That YSP is never disclosed which makes virtually all loan closings materially deficient in disclosures. That Is compensation arising from the loan origination. It doesn’t exist but for the loan origination.
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Back to our subject. So the investment bank does not get revealed nor is any note or mortgage or deed of trust executed in favor of the investment bank.
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And there is the kicker. The originator whom we all know is not funding the loan is NOT an agent for the investment bank so this doesn’t even qualify as a table funded loan. The reason it is not an agent of the investment bank is that the investment bank has expressly created veils that prevent it from being named as the lender and therefore subject to Federal and State lending laws.
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So the investment bank cannot claim to be the owner of the obligation or debt, nor can it plead for relief under the note and mortgage or deed of trust — unless it admits a scheme to violate Federal and State lending laws.
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So the answer to that “problem” is that the investment bank uses veils (sham conduits) and “designates” sham entities to serve as claimant in foreclosures or, better yet for them, names nobody as designee but nonetheless states a name as though it was an entity like “US Bank, as trustee on behalf of the certificate holders of SASCO Trust 2006-1. ” Although US Bank exists, there is no legal entity that could be called “certificate holders of SASCO trust 2006-1” even though it sounds official.
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Some analysts including myself had previously erroneously concluded at times that the note was split from the mortgage. It wasn’t. The ownership of the debt was split from the payment of value. Under all current black letter law that means that it is illegal for anyone to claim ownership of the debt.
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BUT as I pointed out above, that still leaves open an action in equity in which the false or deficient loan origination documents could be reformed in a way that designates a party who may act as owner of the debt — but only after all the interests of all the stakeholders are taken into consideration.
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This might include liability for disgorgement of undisclosed profits, among other things.
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The failures to disclose deprived borrowers of choice between lenders and deprived them of the opportunity of bargaining for terms that were based upon the economic reality — that the main point of the loan origination was not the loan but rather the sale of unregistered securities. THAT is where the profit is and was and without that the loan would never have occurred. None of that profit was disclosed.

FREE REVIEW:

If you want to submit your registration form click on the following link and give us as much information as you can. 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 TO ORDER CONSULT (not necessary if you order PDR)
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. 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.
Please visit www.lendinglies.com for more information.

Will the Bubble Burst?

We are now on the longest stock bubble in history – stocks are up way above the tech boom.   GDP was 4% then and 2% now. The difference?  The government is STILL printing money and dumping it on the financial institutions in the form of overnight repo lending money – almost all of which is going right back into the stock market thus extending this bubble artificially. Dan Edstrom, former senior securitization analyst for LivingLies.
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Dan Edstrom and I go pretty far back with our first contact I think in 2007 which was before the crash. When I started offering services to the public in aid of foreclosure defense, coaching lawyers etc., I was occasionally inundated with more work that I had imagined and it was Dan who stepped up and made good on the offer. HIs insight and extreme persistence paid off in hundreds of cases where homeowners retained the title and possession of their home — sometimes in very favorable confidential settlements.
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He wrote to me commenting on my article about offering underwriting services to borrowers who are thinking about taking out a loan. This is what he wrote.
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So we had the tech bubble followed by its burst and 9/11, and that followed by the mortgage meltdown where housing prices peaked around 2005-2006, followed by the implosion of hundreds of originators (i.e. straw lenders), followed by the collapse of Lehman brothers and Bear Stearns, and another stock market crash circa 2008-2009.
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Despite Sarbanes-Oxley and other legislation (re: Enron, Tyco, WorldCom et al) No jail, nobody brought up on charges, no financial institutions broken up (even though massive amounts of known felonies). The fines were astronomical, or so it seems, except if actually compared to the earnings (slap on the wrist maybe?)…   And then there were the few “bad seeds” who were thrown under the bus and fired. And then we had the bailouts, the largest wall of money in the world thrown at the largest fraud in the world. The result?
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We are now on the longest stock bubble in history – stocks are up way above the tech boom.   GDP was 4% then and 2% now. The difference?  The government is STILL printing money and dumping it on the financial institutions in the form of overnight repo lending money – almost all of which is going right back into the stock market thus extending this bubble artificially. [And also consider the underwriting issues you reference in your article.]
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And housing?  The housing prices in CA are way up over what they were in 2005-2006. Another long bubble. Both housing and the stock market are in an upwards bubble from 2010-2012 or so to today. Looks like they rose together and will probably burst within a short time of each-other.
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So by NOT prosecuting criminals and criminal organizations, and instead flooding them with money, this is a non-stop circus that can only end very badly. And that end is coming very soon.  These bubbles will burst and this time it will probably be in unison.
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The government has no answer except to try to print more money and give it away to the big banks and larger than life clowns. Meanwhile, back in the homes of the little people ……… Oh wait, hang on while they are extricated through mass foreclosures so that we can once again save our country ….\

FREE REVIEW:

If you want to submit your registration form click on the following link and give us as much information as you can. 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 TO ORDER CONSULT (not necessary if you order PDR)
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. 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.
Please visit www.lendinglies.com for more information.

Hidden Taxes and Minimum Wage

Annie Lowry, staff writer at The Atlantic calls it the “Great Affordability Crisis”
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These are what I call hidden private taxes and other expenses that either didn’t exist before or which cost a fraction of what they do now like
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healthcare
childcare
drinking water
telephone
telephone service
internet
bail
cars
Cable TV
Interest expense on debt
etc.
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If you add those up it takes a big chunk out of the budget for the average household. None of that would be a problem if we had stuck with the minimum wage passed long ago. Back then minimum wage was a living wage.
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The public and the politicians have been sold a bill of goods by the banks who have now replaced earnings with debt. That is nuts. It hurts both the companies that “save” money on lower cost of employment and the employees. Henry Ford invented the middle class by simply doubling the rate of pay for all his employees. Although heavily criticized by his competitors he was right — sales of cars exploded and a whole new class of consumers was born. It’s all true. Look it up.
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They all made more money, not less. Tax revenue soared without any increase in the rate of taxation.
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Minimum wage serves as the baseline for all wages. If the minimum wage had been allowed to keep pace with inflation it would be around $23 hour. So somebody working a typical 50 hour week would be earning $1150 per week, $4945 per month, and around $60,000 per year, which would mean the average worker would be making around twice that. This would result in far greater tax revenue without increasing taxes — sales taxes, income taxes, social security etc. There would be no deficit.
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And with everyone earning more money it would be easier for professionals who currently find it difficult to bring in clientele able to pay fees not covered (i.e. controlled) by insurance companies.
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And it doesn’t take a genius to realize that had wages kept up with inflation it would have been easier for one parent to stay at home reducing both the urgency of the need for childcare and the insurgence of “low cost” childcare that failed to provide minimum needed services.
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Viewing the economy through a cost-of-living paradigm helps explain why roughly two in five American adults would struggle to come up with $400 in an emergency so many years after the Great Recession ended. It helps explain why one in five adults is unable to pay the current month’s bills in full. [Thus steering them further into debt] It demonstrates why a surprise furnace-repair bill, parking ticket, court fee, or medical expense remains ruinous for so many American families, despite all the wealth this country has generated. Fully one in three households is classified as “financially fragile.” Lowry, The Atlantic in

“The Great Affordability Crisis Breaking America”

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So the biggest tax of all — which is both public and private — is that failure of government to keep up its promise of a fair wage for an honest day’s work. It’s killing the country. We might as well eat our young.
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If workers were paid money to work instead of being loaned money that had to be repaid we would not be in this mess.
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For one thing borrowers could have hired competent advisors before buying into residential loan products based upon false appraisals and near certain doom for their largest, most important and often only investment.
*
Push back from competent licensed people representing borrowers who knew what they were talking about would have severely curtailed or virtually eliminated the way the banks played securitization with residential loans.
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Rising false appraisals couldn’t have happened but for the lack of accessibility to information vital for the borrower to know about the way their property was being valued — i.e., temporarily for the sole purpose of getting the borrower to sign on the dotted line.
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Doomed loan terms could not have happened either. Nobody representing the borrower would allow them to enter into a loan agreement where the reset payments were greater than total household income.
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In short, the 2008 Great Recession could not have occurred in a way that was perceived by many as threatening all of government all over the world.
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It all happened because we let the banks sell the false idea that credit was just as good as money in the bank. It isn’t. It never was. Your savings account is far more important than your FICO score.
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Whatever your political preference, if your candidate doesn’t understand these basic thoughts, then find someone else in whom to trust your vote — someone who does understand basic arithmetic and cause and effect.  Make no mistake about it — there are Republicans and Democrats who are worth your vote. And there are others who are not.

FREE REVIEW:

If you want to submit your registration form click on the following link and give us as much information as you can. 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 TO ORDER CONSULT (not necessary if you order PDR)
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. 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.
Please visit www.lendinglies.com for more information.

Another Person Dies Fighting Fake Foreclosure by Wells Fargo

  • Larry Delassus, of Hermosa Beach, California, lost his house two years ago after the bank thought he was behind on his property taxes but it was actually his neighbor
  • Despite proving he was ahead of schedule on his mortgage and had paid his property taxes in advance, he still had to fight the bank in court
  • The 62-year-old who suffered a rare blood-clot disorder, died of a massive heart attack in Torrance Courthouse on December 19, 2012, as he was fighting the shocking blunder

Seehttps://www.dailymail.co.uk/news/article-2290983/Larry-Delassus-death-Elderly-man-lost-house-Wells-Fargo-TYPO-collapses-dies-court-fighting-bank-years-on.html

So first of all let’s get one thing straight. His neighbor probably was not indebted to Wells Fargo and therefore a declaration of default or “Notice of Default” from  or on behalf of Wells Fargo would have been false, fraudulent and part of a RICO scheme even if it had been directed against the neighbor.

Second, the reason why the foreclosure was not simply withdrawn as an error is that it was no error and in all probability the foreclosure process was not directly controlled by Wells Fargo but rather through a labyrinth of sham conduits just so everyone could have plausible deniability.

Third the reason why foreclosure was pursued had nothing to do with the performance of any loan. The participants supporting the foreclosure were all in it to make a profit and had no interest nor intent to pay any party who actually owned the debt.

And fourth, the man died along with thousands of others, because of the stress of fighting for his home instead of his health.

FREE REVIEW:

If you want to submit your registration form click on the following link and give us as much information as you can. 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 TO ORDER CONSULT (not necessary if you order PDR)
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. IN FACT, STATISTICS SHOW THAT MOST HOMEOWNERS FAIL TO PRESENT THEIR DEFENSE PROPERLY. EVEN THOSE THAT PRESENT THE DEFENSES PROPERLY LOSE, AT LEAST AT THE TRIAL COURT LEVEL, AT LEAST 1/3 OF THE TIME. IN ADDITION IT IS NOT A SHORT PROCESS IF YOU PREVAIL. 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.
Please visit www.lendinglies.com for more information.

Tonight! How to Fight Unlawful Detainers and Evictions 3PM PST 6PM EST

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

with Attorney Charles Marshall

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

On today’s Show Charles Marshall will break down and break out analysis on the following topics: Using unlawful detainer (UD) legal procedure to increase your leverage as a UD defendant through the filing where appropriate of

– motions to quash;

– demurrers (motions to dismiss);

– Federal Removals;

– bankruptcies.

Then Attorney Marshall will cover the issues that typically arise in setting up TRO ex parte hearings to stop non-judicial foreclosure auctions, including

– the need for a filed lawsuit;

– typical notice requirements;

– timing issues;

– strategies to increase odds of prevailing.

Will Bernie Sanders Ruin Our Economy? — NO

And neither will any other presidential candidate. Lloyd Blankfein’s latest comment comes out of panic. Goldman Sachs was at the root of the 2008 pandemic. He knows that all of the pornographic profits collected by Goldman Sachs (some taxpayer funded — see AIG deal) are subject to clawback simply because they were illegally obtained on false pretenses.

I’m not endorsing anyone here. But what I have endorsed for 14 years is electing people who will simply enforce the rules we already have against the big investment banks on Wall Street. We don’t need new rules. We need to steer available resources into enforcement. That means educating the enforcers so they understand what they’re looking at.

In order to maintain a level playing field on a competitive field you need a referee. So the next President needs to be the enforcer in chief.

A President doesn’t need to be an expert in the securitization of debt. But she or he needs to be both curious and skeptical. If the information is coming from Wall Street don’t expect it to contain any data on what is going wrong. If people are suffering start asking why they are suffering.

If you want to see the latest about Wall Street panic just go to Twitter and you’ll see Blankfein’s tweet and responses from others.

New Business Idea: Underwriting for Borrower Loans

So since the requirements of the Federal and State lending laws are not being enforced even in court, it seems to me that the thousands of financial advisers and planners who ply their trade should expand into a new niche — underwriting loans before borrowers accept them. Their client should be the prospective or existing homeowner.

Using the disclosure requirements of the Federal Truth in Lending Act as a base, such advisers could provide the only reliable basis to assess whether a particular loan product is actually good for the borrower or bad.

It’s not difficult and it used to be the way that lenders performed loan underwriting — when they had any risk and when their own skins depended upon how well their loan portfolio performed.

What I propose is that those with sufficient knowledge and training — i.e. real credentials — perform their own underwriting review which would include such things as

  • obtaining independent appraisal tested against relevant median income
  • testing expectations against projected changes in demographics
  • testing actual household income against carrying cost of the loan
  • testing whether the lender has actually been identified
  • determine whether undisclosed revenue and compensation is part of the offering of the loan package
  • suggesting negotiation for incentives to pick one loan package over another
  • examining the title insurance policy for exemptions that affect financial viability

These are all things that are supposedly unnecessary under existing laws, rules and regulations. But they are nonetheless essential if homeowners want to avoid the catastrophe that hit homeowners who bought loans products in the period of mid 1990’s-present.

And this crisis presents an opportunity to those people who entered the financial services industry providing personal advice, suggestions and planning. Just offering this underwriting service would cross sell their other services and would pay for itself with a reasonable fee attached.

And one last thing: the practice of NOT hiring a lawyer to review contracts and closing documents before they are executed needs to end. It’s the biggest investment of your life. You should be willing to tack on a couple of thousand dollars for independent, objective review, analysis and advice from licensed professionals who have no dog in the race except yours.

Blind faith in the banks and believing any of their admonitions about not getting  a lawyer or believing their appraisal of the value of the home, or their statement of viability of the loan is just plain stupid. They don’t care about you or your loan except to make a profit by generating sales of unregulated securities.

That is the inevitable result of decentralized banking. With no commitment to you or your neighborhood they will do things that benefit only themselves. If you want to change that, close your account with the megabank and join a credit union or open accounts with a community bank. You will be glad you did it.

New Rules Making Life Easier for Banks

The most basic problem is still not addressed. The Volcker rule attempted to make banks play by rules of common sense, to which the banks rely that life is more complicated than that.

The basic problem is that current law does not allow for securitization as it is currently practiced. Current law provides that only someone who has paid value for a debt can own it. And only an owner can enforce it. Current securitization makes that impossible. The sale of certificates to investors cuts off the only players who paid value from ownership of any debt, note or mortgage.

The banks are bridging this fatal gap by relying upon legal presumptions arising from the apparent facial validity of fabricated documents most of which are not facially valid on close inspection.

The old rules and the new proposed rules perpetuate the sue of false and misleading labels for instruments that are created and for players in the securitization scheme.

But the rules also tacitly ratify the erroneous presumption that  by having control over the assets of the trust the banks control the assets themselves, even though they were not purchased for value by a trust, trustee or even the investors.

But the new rules do provide confirmation that the banks are controlling everything that their absence in foreclosure is a fatal flaw and their goal is revenue and not interest payments or even principal due from faulty loan products.

Most importantly their absence from lawsuits for wrongful foreclosure is highlighted — since they are the ones controlling everything and are therefore vicariously liable for the actions of all the other conspirators seeking to sue foreclosure as a means to produce revenue and not restitution for an unpaid debt.

As for the interests of the “holders of certificates” consider this:

  1. “The entitlement to payments under the terms of the interest [must be] absolute and [can]not be reduced based on losses arising from the underlying assets of the [CLO], such as allocation of losses, write-downs or charge-offs of the outstanding principal balance, or reductions in the amount of interest due and payable on the interest.”
  2. “The holders of the interest [can]not [be] entitled to receive the underlying assets of the [CLO] after all other interests have been redeemed or paid in full (excluding the rights of a creditor to exercise remedies upon the occurrence of an event of default or an acceleration event).”[5]

And remember that the banks are securitization everything they can reach, whether they own it or not, because the issuance of securitization products, contracts, hedges and insurance are just too profitable to pass up:

The Volcker Rule currently defines the term “Loan” to mean any loan, lease, extension of credit, or secured or unsecured receivable that is not a security or derivative. Although not discussed in this article, the exemption also permits investments in certain servicing rights, certain interest rate or foreign exchange derivatives directly related to or reducing the interest rate or foreign exchange risks related to the CLO’s assets, and certain collateral certificates and special units of beneficial interest issued by special purpose vehicles.

seehttps://www.jdsupra.com/legalnews/rolling-back-the-impact-of-the-volcker-36523/

Making Your Point in Court

Among the Webinars we are planning to offer shortly is one called “Making Your Point: The Nuts and Bolts of Persuasive Presentation in Court”.

The problem with most presentations of foreclosure defense is that they focus exclusively on the technical requirements of foreclosure. That is necessary of course because the foreclosure fails if it is not done properly. But lacking in most presentations and present in all presentations in which the homeowner has won is the fact that the foreclosure is fundamentally wrong and that the court is not going to fill in gaps that the claimant can’t or won’t fill.

The important thing with both bench and jury trials in these matters is that the trier of fact is not going to give a windfall to anyone just because of a technicality.

That is why it is so important to get facts in front of them that show that this isn’t just about the fact that the banks did everything wrong, it is really about a greedy scheme in which they immediately made profits more than the principal of the loan and never told the investors or the borrowers about it. It is about the banks withholding disclosure that would have altered the terms of any deal with investors and borrowers.

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Hence the foreclosure must be seen as wrong from a layman’s point of view. He or she must see this as wrong —morally corrupt— and that rewarding the homeowner is one way to regulate greedy corrupt practices that sent us into 2008 spiral while the banks continued to make money on the decline.
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The missing link is that the real deal was securitization — the issuance and trading of securities and betting against both the “loans” and the securities that were issued. The real deal was not lending. Taken in that context, the implied contract requires that the investors and borrowers be compensated for the undisclosed risks and the undisclosed profits made as a result of their involvement in securitization.
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But even if that compensation is not forthcoming, the prospect of the imbalance between the mountain of profit and the molehill of debt must loom large in order to get an actual award of real damages. The judge or jury must understand that not awarding damages to the homeowner is sanctioning the bad behavior fo the banks and further rewarding them by allowing them to retain ill-gotten gains.
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My opinion is that taking this to the judge emphasizes the legal technicalities which are all on your side but that the judge will have the same bias — a windfall to a homeowner at the expense to the banks in whose stocks he or she has invested pension money and at the expense of securitization in whose certificates his pension money has been invested.

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If the trier of fact decides that in the end it is fair and it is right that the foreclosure should proceed because the foreclosure will result in payment to someone who paid value for your debt and has suffered a loss from your refusal to pay, there is no technicality that will likely save you.

Wait! Somebody must have paid something right?

How do you know what was paid by whom and when and what terms applied? The whole point here is that money was paid by investors who did not receive ownership to the debt, note or mortgage. Nor did they assign any equitable right to the debt, note or mortgage. Since the value was paid by a party who never received ownership, no “successor” would have any reason to pay value for ownership nor did they do so.
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And before you decide to shift gears, the investment bank took in money from investors as a commercial deposit — i.e. a  third party loan — as part of purchase of promissory note (certificate) to make payments to the buyers. While that COULD have resulted in the vinestment bank becoming the owner of the debt, note and mortgage on loans granted to borrowers, it didn’t. Like the investors who bought certificates, they paid for it but not in exchange for ownership of the debt, note or mortgage.
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Not one note or mortgage was made payable to the investment bank and not one “Loan” transaction was funded directly by the investment bank who channeled funds through several existing legal business entities. This was done to evade liability for lending law violations and as Chase found out you can’t have it both ways. You either were the lender or you were not. You either “succeeded” to the position of the predecessor or you didn’t.
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The media gets it wrong because they cannot conceive of a scheme that simply isn’t allowed under existing law and if it was allowed there would be changes in all affiliated laws as well — this giving investors the real scoop on what was being done with their money and the borrowers the real scoop on how much revenue was being generated from the origination or acquisition of their loan. In the current custom and practice of securitization of residential debt, the certificates and possibly the promissory notes would be regulated as securities.
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The key change in the law that is needed for securitization to be allowed as practiced and for title to be cleared is the designation of a non-owner who didn’t pay value for the debt to be the creditor. This is a massive paradigm shift, but one which is probably needed. But right now the ONLY way we can acquire a debt is through payment of value for it in exchange for rights of ownership of the debt.
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That is precisely where the media, attempting to report on the facts, gets it wrong. they simply cannot conceive of a scenario where all this paperwork would be flying around and that such instruments would be meaningless, without value and legal nullities — except for erroneous legal presumptions arising from the erroneous conclusions that the instruments have facial validity. So you see court decisions and article referring to sales that never occurred. They also report loans that never occurred.
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And so we have a huge body of law allowing foreclosure rewarding people and business entities who receive the proceeds of forced sale as revenue instead of payment on a debt they never owned or paid for. And that is required change in the law that is needed. Upon revision of all relevant statutes, once a business entity is “designated” as creditor all efforts by anyone else must stop as to collection, processing, administering, or enforcement of any debt, note or mortgage. The game of musical chairs played by investments banks, servicers, “trustees” etc. must stop if we are to make sense out of any of this.
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In most cases loans were originated from non capitalized brokers or sellers of loan products, not lenders or were creditors. This information is withheld from borrowers contrary to the requirements of Federal and state disclosure requirements to consumer borrowers.
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Also withheld from borrowers is the fact that their signature, name, reputation and home is being used as part of a securitization scheme in which the loan labeling is misleading because neither the originator nor even the “warehouse lender” has any risk of loss. The entire transaction is different from what the borrower thought and different from what the borrower had a right to think as per common law, Federal and state lending statutes.
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Borrowers are not required to understand that the “loan” is no longer part of the system in which money supply increases (because that already happened when investors purchased certificates from investment banks).  But under current law lender s ARE required to know that and do know that and they further know that their incentive is to get the signature of a consumer for fees not interest income.
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The entire burden of viability of any consumer loan is not on the borrower (Caveat emptor) but on the lender who knows better. That is the law. AND the law presumes that the risk of loss is a self-regulating market force that forces lenders to make good loans. But what happens when there is no such risk? The transaction is changed and the transaction is no longer within the boundaries of the existing lending laws.
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In short, such transactions are either not legal or carry heavy penalties for violations. If banks avoid such liabilities by intentional concealment of the true facts and thus produce catastrophic anomalies in the marketplace (see 2008) displacing tens of millions of people from their homes, why should those homeowners bear the full burden of such a catastrophe? Both policy and law agree on this. They shouldn’t.
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The counterpart in what was labeled as a loan agreement was in actuality a vendor to the investment banking industry who didn’t receive interest as revenue for making a loan and who had no risk of loss. It was a scheme where all participants received fees, commissions, bonuses trading profits and other compensation arising from the origination of the transaction intentionally mislabeled as a loan in which the mislabeled “lender” was seen as seeking interest income on principal when in fact the interest payments and even the payments on principal were completely irrelevant to the originators and the “warehouse” lenders.
*
“Successors” under current law are merely designees not successors because they have not contributed any money toward payment of value for the debt — a basic black letter requirement under current law.
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All of this is very counterintuitive and it is meant to be. The more complicated the banks make it the more everyone relies on the banks to tell them what these paper instruments mean and what events are memorialized in those paper instruments. But the plain fact is that there are no events memorialized in the paper instruments. There were no transactions. Why would anyone pay value for a debt that is not owned by the “seller?”
*

Tonight! How to convince a judge that ruling in your favor is the right thing to do

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

The definition of insanity is doing the same thing over and over again and expecting a different result, Change your strategy, Change your tactics. Change your presentation and be mindful of the facial expressions and concerns expressed by a judge. That is what good trial lawyers do and it is what any pro se litigant must do if they are going to win.

Pleading Civil Conspiracy and RICO

I am currently working on multiple cases in which lawsuits for civil conspiracy and RICO will shortly be filed. I thought I would share with the public some of my observations and research.

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All of these discussions come down to a specific description of the scheme, when the tortious act (“crime”) occurred, who did it and why.
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General rule: an act which constitutes no ground of action against one person cannot be made the basis of a civil action for conspiracy.” This is going to be the defense — divide and conquer. They will each defend s saying that their actions do not constitute a tort. Therefore they cannot be held liable for a tort. If I was them I would argue that the collection of non-tortious actions does not create a tort, collectively or individually.
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But, the article goes on to say that “mere force of numbers acting in unison may comprise an actionable wrong.” This is exactly what we should be alleging. Servicing is not a crime. But acting as though you are servicing for the purpose of facilitating a false foreclosure is a crime, especially if you are servicing for a client that has no interest in the debt. Investment banking is not a crime. But selling certificates and using the proceeds to fund loans in the name of originators who can’t or won’t be liable for pending law violations is a crime (tort). And directing foreclosure for profit instead of seeking restitution or settlement of an unpaid debt is also a crime (tort). AND coming to court as a witness is not a crime. But coming to court with a scripted message about which you actually know nothing in order to mislead the court is also a crime. The same goes for affidavits and declarations.
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The further discussion is also interesting. “If the Plaintiff can show some peculiar power of coercion possessed by the conspirators by virtue of their combination, which power an individual would not possess, the conspiracy itself becomes an independent tort…. The essential elements of the tort are a malicious motive and coercion through numbers or economic influence.” Bingo! That is it! The false flag foreclosure could not happen but for the integration of acts by multiple co-venturers including the trustee, trust, certificate holders, servicers, lawyers, etc. Each one of them played a vital role. The purpose was clear — revenue through false pretenses — the false pretense being that there were pursuing restitution for an unpaid debt when in fact they were only seeking revenue.
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…ordinarily there can be no independent tort for conspiracy. However, if the plaintiff can show some peculiar power of coercion possessed by the conspirators by virtue of their combination, which power an individual would not possess, then conspiracy itself becomes an independent tort. See also Shaltupsky v. Brown Shoe Co.,350 Mo. 831168 S.W.2d 1083 (1943); DesLauries v. Shea,300 Mass. 3013 N.E.2d 932 (1938); Cummings v. Harrington,278 Mass. 527180 N.E. 519 (1932). The essential elements of this tort are a malicious motive and coercion through numbers or economic influence. See Hunter Lyon, Inc. v. Walker,152 Fla. 6111 So.2d 176 (1942); Regan v. Davis,97 So.2d 324 (Fla. 2d DCA 1957).
Churruca v. Miami Jai-Alai, Inc., 353 So. 2d 547, 550 (Fla. 1978)
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Respondents next argue that the second amended complaint does not state a cause of action in tortious conspiracy. That argument is also unpersuasive. In order to sustain their cause of action, petitioners must demonstrate that the conspirators acted with evil motive. It is true that the respondent frontons are individually entitled to employ whomever they wish. They may even decide in combination to refuse employment to prospective employees if they believe those persons would be unsatisfactory. However, if the concerted effort of the fronton owners is designed maliciously for the purpose of beggaring petitioners by depriving them of their livelihood, the employers are guilty of tortious conspiracy.
Churruca v. Miami Jai-Alai, Inc., 353 So. 2d 547, 549 (Fla. 1978)
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25. This aforesaid refusal was the result of defendant frontons knowingly, wilfully, wantonly, wickedly, maliciously, and malevolently, conspiring, combining, confederating and agreeing together to prevent the plaintiffs, and each of them, playing jai-alai at the defendant frontons.
26. The said jai-alai frontons, at a time unknown to the plaintiffs, maliciously, wantonly, and wilfully conspired and agreed together to punish the plaintiffs, and each of them, for their having joined the Union and supported the Union’s demands as aforesaid and for their refusal to play as aforesaid during the said 1968-1969 season.
27. The said punishment was and is the malicious, wanton, wilful, malevolent boycott and lockout of the plaintiffs and each of them from their employment by each and every defendant fronton.
28. The said joint boycott and lockout commenced at a time unknown to the plaintiffs and has persisted continuously since.
29. Until said conspiracy is terminated, the plaintiffs and each of them will be unable to secure employment in their chosen occupation of jai-alai player. (Emphasis
Churruca v. Miami Jai-Alai, Inc., 353 So. 2d 547, 549-50 (Fla. 1978)
The plaintiff in Margolin, a surgeon and member in good standing of the Morton F. Plant Hospital medical staff, sued the executive director of the hospital, the president of the hospital’s staff, and the licensed physicians who practice anesthesiology as members of the hospital staff. The defendants as a whole allegedly exercised absolute control over the availability and rendering of general anesthesia services to all surgeons and patients at the hospital. Plaintiff alleged that the anesthesiologists had maliciously conspired as a group to refuse to perform services for his patients, thereby hoping to bring about his financial ruin by effectively precluding him from using the hospital. The court, speaking through Judge Grimes, held that the complaint stated a cause of action under the Snipes rationale. In summarizing Snipes, Judge Grimes stated:
In essence, even though a person has the privilege of selecting those with whom he wishes to conduct business, when several persons who occupy a coercive position with respect to another act in concert to decline to do business with him, their refusal may under certain circumstances constitute an independent tort. Id. at 1094.
Churruca v. Miami Jai-Alai, Inc., 353 So. 2d 547, 550 (Fla. 1978)
Florida recognizes that civil conspiracies may exist as an independent tort. Snipes v. West Flagler Kennel Club, Inc.,105 So.2d 164 (Fla. 1958). Florida also recognizes a cause of action for the tortious interference with an advantageous business relationship. Martin v. Marlin,529 So.2d 1174 (Fla. 3d DCA 1988), rev. denied, 539 So.2d 475 (Fla. 1988).
Wilcox v. Stout, 637 So. 2d 335, 336 (Fla. Dist. Ct. App. 1994)
And there is an interesting twist on service of process and jurisdiction of the court:
We conclude that if appellant has successfully alleged a cause of action for conspiracy among appellees and Morse to commit tortious acts toward appellant, and if she has successfully alleged that any member of that conspiracy committed tortious acts in Florida in furtherance of that conspiracy, then all of the conspirators are subject to the jurisdiction of the state of Florida through its long-arm statute, section 48.193, which provides that any person, whether or not a resident of Florida, who personally or through an agent, commits a tortious act within Florida submits to the personal jurisdiction of the courts of Florida for any cause of action arising out of the tortious act committed in Florida. Where a civil conspiracy to commit tortious acts has been successfully alleged, and some of those acts are alleged to have been accomplished within the state of Florida, we have no hesitancy in applying the well-accepted rules applicable to the liability of co-conspirators in the criminal context. Those rules make every act and declaration of each member of the conspiracy the act and declaration of them all. Additionally, each conspirator is liable for and bound by the act and declaration of each and all of the conspirators done or made in furtherance of the conspiracy even if not present at the time. Honchell v. State,257 So.2d 889 (Fla. 1971); Farnell v. State,214 So.2d 753 (Fla. 2d DCA 1968); Martinez v. State,413 So.2d 429 (Fla. 3d DCA 1982). We conclude that the well-established rules of criminal conspiracy comport with our application of section 48.193 in this case.
Wilcox v. Stout, 637 So. 2d 335, 337 (Fla. Dist. Ct. App. 1994) (e.s.)

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Updated resource List of Attorneys, Paralegals and Forensic Examiners

So without a lot of organizing, this is the result of my request for names of people who are helping people with foreclosure defense and who are recommended by several people. I offer no guarantee or endorsement  I am including these people because I have at least high hopes they accept engagements and will do the job.
This list is not complete. I’m sure I am leaving people out. Write to me at neilfgarfield@hotmail.com to make additions or corrections. See links below.
I am not publishing contact information inasmuch as I do not know what is current for them. The ones that have a star* are people with whom I have worked directly and repeatedly.
MULTIPLE STATES
John Mike, Esq. — MD, VA, PA, NY, OH, AZ, FLA, CA
*William (Bill) Paatalo, forensic investigator — all US jurisdictions
ARIZONA
 
*Beth Findsen, Esq.
*Ronald Ryan, Esq. Bankruptcy
 
CALIFORNIA
 
*Stephen Lopez, Esq.
*Charles Marshall, Esq.
Michale Moini, Esq.
*Patricia Rodriguez, Esq.
Mark A. Ruiz, Esq.
David Seal, Esq.
Michale Yesk, Esq.
 
CONNECTICUT
Victor Rodriguez, Esq.
DC Area
 
Gerard Uehlinger (Md only),
Peter Silva (Md, DC and VA)  and
Kellee Baker (Md and DC).
Christopher Brown, Esq.
Alvaro Llosa, Esq.
Beth Jacobson, Advocate
DELAWARE
 
Michale Cohen, Esq.
FLORIDA
*James Ackley, Esq.
Michele S. Belmont, Esq.
Jonathan Benjamin, Esq.
Brad Essman, Esq.
Astride Gabbe, Esq.
*George Gingo, Esq.
*Patrick Giunta, Esq.
*Bruce Jacobs, Esq.
Magen Kellam, Esq
Jose G. Oliveira, Esq.
James Orth, Esq.
GEORGIA
 
Gilles Walters, Esq.
 
ILLINOIS
 
*Daniel S. Khwaja, Esq.
MASSACHUSETTS
David Kiah, Esq.
Elsa Diaz Alonso, Esq.
MISSOURI
 
Bernie Becton, MBA, JD  paralegal — recommended but unknown
NEW JERSEY
Ira Metrick, Esq.
Larry Sarlo
 
NEW YORK
 
Sheldon Farber, Esq.
 
NORTH CAROLINA
 
Travis Collum, Esq.
Stacy Williams, Esq.
 
OHIO
Bruce Broyles, Esq.
TENNESSEE
 
Webb Brewer, Esq.
VERMONT
 
Ernest J. Ciccotelli, Esq.
 
WASHINGTON
Michele McNeill, Esq.
 

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How Can I find the Real Lender? Securitization in a Nutshell

The point of securitization — as practiced by Wall Street is that there is no risk in lending to consumer borrowers. Under existing law that means there is no lender and there usually isn’t — except where a conventional loan get paid off in a  securitization scheme.

Sound crazy? it gets worse. Not only is the lending without risk but the higher the probability of failure of the loan the more the profit. That’s because in foreclosure the investment bank takes all the money, distributes it as revenue and gives the investors nothing.

The point is not finding the lender. The point is revealing that the party making the claims to collect, process, administer or enforce your loan is not the owner of the debt.

Under all existing law nobody can own a debt unless they paid for it. And nobody can own a debt unless they also have title to the debt. In real estate transactions that means that the note conveys title to the debt if the Payee has paid value for the debt. In conventional loans that means despite common beliefs about the construct of a loan, the “lender” is purchasing a debt from you and getting title to the debt by delivery of the note. That is where all those provisions of the UCC (Uniform Commercial Code) come from, adopted in all U.S. jurisdictions.

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In principle, securitization should have no effect and the debt would be owned and enforceable either by a group of investors or some business entity into which they had deposited their money and which purchased the loans from “borrowers” like you. Those investors would collectively have paid value for your loan and received title to the debt in the form of a note which is required by the statute of frauds.
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But in practice the investors deposit their money with an investment bank. They are not buying your promise to pay or your promissory note or your security agreement (mortgage). They are buying a certificate in which an investment bank, acting under the name of a trust which may or may not exist issues the certificates to memorialize a promise from the investment bank to make payments to the investors. And that is where the law has no provision for what the banks did next.
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The investors expressly waived and disclaimed any right, title or interest to any debt, note or mortgage. which means they paid for it but they received no direct ownership of it. Instead they got a promise from the investment bank that was actually unsecured and mostly discretionary on the part of the investment bank with vague references to indexes based upon the performance of a portfolio of loans that probably did not exist as a portfolio owned by any business or other legal entity except as a fictional construct created by the investment bank on the desk of a CDO manager.
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CDO=Collateralized Debt obligations — which are obligations but not collateralized in any legal sense. The investment banks use labels to create the fictional constructs and then hope it is complicated enough that any explanation they give will be accepted by a court.
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So the question is not YOU find the actual lender. Under the law it is the burden of the claimant to find the actual lender and show that it is the party who paid for the debt and who therefore has a financial injury arising from non performance under the loan or else there is no jurisdiction by which the court can consider any claims based upon the existence of the loan.
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And the only way you can do that is through discovery and/or cross examination where you reveal gaps in the case being presented against the homeowner.

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Fraud Is Not What You Think It Is

There are actually two different definitions of fraud. The lay definition is anything that is a lie. The legal definition goes much further than that and if you can’t satisfy the legal elements of fraud you won’t survive a motion to dismiss or motion to strike.

It’s complicated like everything else.

There are many components that must be satisfied before you can get to a judge or jury to render a verdict on fraud. Such a verdict would be for legal or monetary damages. But there are other actions that do apply to fake foreclosures.

FRAUD: Here are some guidelines:

  • A lie is not fraud unless you believed it. And it still isn’t fraud unless you reasonably believed it. This one is fraught with possibilities because while you may have suspected something was wrong there is a very fuzzy line between that and a reasonable belief that the claimant was a creditor in a  foreclosure case. Why else would they be there, right?
  • The lie is not fraud unless you reasonably relied on the lie to make decisions that caused you to act to your detriment.
  • And it’s still not fraud unless unless you can state with specificity when, where and how the lie was communicated to you.
  • And then it is still not fraud unless you can also state and prove that the speaker had the intent of lying to you, knew that he/she was lying and that they intended for you to act on it to your detriment.
  • It’s still not fraud yet. You still need to prove that the lie was told to benefit the speaker of the lie and not someone else unless it is a joint venture or conspiracy.

If you don’t have all that then you don’t have a cause of action for fraud, but you might very well have a cause of action for RICO, negligence, fraud upon the court, and equitable relief for unjust enrichment etc.

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Ex-OneWest Chief Surprises Wells Fargo With OCC Enforcement

On Thursday, the OCC banned former Wells Fargo CEO John Stumpf from the banking industry and fined him $17.5 million (13 million pounds) to settle charges he failed to put a stop to sales misconduct – the most it has ever secured from an individual. Among other former executives charged was retail banking head Carrie Tolstedt, who has not yet settled and is potentially facing a whopping $25 million penalty.

After watchdogs including the OCC failed to charge senior Wall Street executives for their role in the 2007-2009 financial crisis, lawmakers have pressed them to hold more individuals responsible for corporate wrongdoing. Proving personal culpability, though, is legally tough, which makes Thursday’s charges all the more striking.

90 years ago, after Congress finally passed the Securities and Exchange Acts President Roosevelt made a controversial appointment to head the new agency — rogue named Joseph Kennedy, father of JFK, RFK and Ted Kennedy amongst others. Roosevelt appointed him because Kennedy knew where the bodies were buried and was seeking legitimacy for his legacy. Kennedy turned on his fellow conspirators and enforced the new laws thus correcting intolerable abuses of law and good sense that had come to dominate a marketplace where only the rich dared to roam.

So too we find Joseph Otting, former CEO of the infamous OneWest which with a  little seed money from some famously rich people who didn’t necessarily understand the true nature of the business plan had formed the enterprise literally over a weekend to take advantage of the bankruptcy of IndyMac. The business plan was simple: “take over” IndyMac and claim ownership of loans that had been originated by IndyMac but long since sold mostly into private label securitizations. And then foreclose on the portfolio which consisted of unviable nonperforming loans. In so doing they would make a “profit” consisting of all the net proceeds from property sales labeled as foreclosures PLUS payments from FDIC for 80% of losses claimed by but not incurred by OneWest.

It’s good work if you can get it. A lot of rich people got richer. And of course a lot of no-so-rich people got wiped out.

Having cleaned out most of the profit potential of OneWest, Mnuchin our current treasury Secretary dubbed “foreclosure king” and Otting went into government both to protect themselves and their compatriots from any claims for disgorgement of ill-gotten gains and to pursue Kennedy’s goal of seeking legitimacy after being party to the greatest economic crime in human history.

Mnuchin is another story. But Otting has seized upon the Wells Fargo culture to foster an image of himself as a reformer. And so he is shining a light upon Wells Fargo who was merely caught doing the same thing all the other big banks were doing — maximizing their strengths as marketing platforms to achieve not only the greatest profit but also the greatest control over the marketplace. To hell with free market forces.

So now Wells Fargo has turned into the poster boy for illicit banking patterns and practices.

Otting at OCC Surprises Wells Fargo With Enforcement

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Closely Watched Case on Disgorgement Could Have Effects on Foreclosure Litigation

The SEC case is basically premised on one simple fact. If someone obtains money or property illegally they should never be allowed to keep it. And whatever they have should be given back to the rightful owner not as punishment but merely return of stolen assets.

One of the central themes of my articles has been that an affirmative defense asking for disgorgement is a proper strategy and one which eventually will prevail to knock out illegal foreclosures without undermining the entire securitization process.

There is nothing wrong with securitization. it has been the basis for capitalism for hundreds of years. You can argue about the flaws of capitalism but it is still the best system devised, so far, in human evolution. But theft is not capitalism.

Unfortunately the United States Supreme Court seems to be moving dangerously close the edge by allowing theft to prevail and the Securities and Exchange Commission is arguing with the court about it. For those concerned about the future of the country now i the time to start making calls to public figures and letting them know how you feel about this.

The SEC is simply taking the position that its powers of disgorgement should not be impinged by anything including the statute of limitations. The fact that victims do not really understand how they got scammed for long periods of time in which the perpetrators of the scam managed to conceal the information should not be an excuse for allowing the perpetrators to keep their ill-gotten gains. Such schemes upset the balance of market forces and the rule of law. Correcting them should be the obligation of law enforcement and the right of any victim to seek redress in court.

https://www.mondaq.com/unitedstates/CorporateCommercial-Law/887206/SEC-Fights-To-Retain-Disgorgement-Power

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Resource List Attorneys etc

So without a lot of organizing, this is the result of my request for names of people who are helping people with foreclosure defense and who are recommended by several people. I offer no guarantee or endorsement  I am including these people because I have at least high hopes they accept engagements and will do the job.
This list is not complete. I’m sure I am leaving people out. Write to me at neilfgarfield@hotmail.com to make additions or corrections. See links below.
MULTIPLE STATES
John Mike, Esq. — MD, VA, PA, NY, OH, AZ, FLA, CA
William (Bill) Paatalo, forensic investigator — all US jurisdictions
ARIZONA
 
Beth Findsen, Esq.
Ronald Ryan, Esq. Bankruptcy
 
CALIFORNIA
 
Stephen Lopez, Esq.
Charles Marshall, Esq.
Michale Moini, Esq.
Patricia Rodriguez, Esq.
Mark A. Ruiz, Esq.
David Seal, Esq.
Michale Yesk, Esq.
 
CONNECTICUT
Victor Rodriguez, Esq.
DC Area
 
Gerard Uehlinger (Md only),
Peter Silva (Md, DC and VA)  and
Kellee Baker (Md and DC).
Christopher Brown, Esq.
Alvaro Llosa, Esq.
DELAWARE
 
Michale Cohen, Esq.
FLORIDA
James Ackley, Esq.
Michele S. Belmont, Esq.
Jonathan Benjamin, Esq.
Brad Essman, Esq.
Astride Gabbe, Esq.
George Gingo, Esq.
Patrick Giunta, Esq.
Bruce Jacobs, Esq.
Magen Kellam, Esq
Jose G. Oliveira, Esq.
James Orth, Esq.
GEORGIA
 
Gilles Walters, Esq.
 
ILLINOIS
 
Daniel S. Khwaja, Esq.
MASSACHUSETTS
David Kiah, Esq.
Elsa Diaz Alonso, Esq.
MISSOURI
 
Bernie Becton, MBA, JD  paralegal
NEW JERSEY
Ira Metrick, Esq.
Larry Sarlo, Loan auditor
 
NEW YORK
 
Sheldon Farber, Esq.
 
NORTH CAROLINA
 
Travis Collum, Esq.
Stacy Williams, Esq.
 
OHIO
Bruce Broyles, Esq.
TENNESSEE
 
Webb Brewer, Esq.
VERMONT
 
Ernest J. Ciccotelli, Esq.
 
WASHINGTON
 

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